Title: Notice of Rule Development 40D-1 and 40D-4 Mitigation Banking
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 Material Information
Title: Notice of Rule Development 40D-1 and 40D-4 Mitigation Banking
Alternate Title: SWFWMD. Notice of Rule Development 40D-1 and 40D-4 Mitigation Banking
Physical Description: 49p.
Language: English
Publication Date: July 11, 1997
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
General Note: Box 5, Folder 12 ( SF MINIMUM FLOWS AND LEVELS, Volumes 1 and 2 ), Item 30
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: UF00052683
Volume ID: VID00001
Source Institution: University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text

NOTICE OF

RULE

DEVELOPMENT

40D-1 AND 40D-4

MITIGATION

BANKING
recycled paper










SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT

RULE CHAPTER TITLE: RULE CHAPTER NO.:

Procedural 40D-1

RULE TITLE: RULE NO.:

Forms and Instructions 40D-1.659

PURPOSE AND EFFECT:

The purpose and effect of these proposed rules amendments is to

incorporate by reference certain forms which must be used to

provide the financial responsibility necessary to insure the

construction, implementation and perpetual maintenance of

mitigation banks.

SUBJECT AREA TO BE ADDRESSED:

The proposed rule amendments incorporate by reference certain forms

which must be used to provide the financial responsibility for

mitigation banks.

SPECIFIC AUTHORITY: 373.044, 373.113 FS.

LAW IMPLEMENTED: 120.53, 373.113, 373.413, 373.414, 373.416,

373.419, 373.421 FS.

A RULE DEVELOPMENT WORKSHOP WILL BE HELD ON THE TIME, DATE AND

PLACE SHOWN BELOW:

TIME AND DATE: July 31, 1997, 10 a.m. 12 noon



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PLACE: Department of Environmental Protection, Main Conference

Room, 2nd Floor, 3804 Coconut Palm Drive, Tampa, Florida 33619.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE DEVELOPMENT

IS: Karen E. West, Assistant General Counsel, Office of General

Counsel, 2379 Broad Street, Brooksville, Florida 34609-6899, (352)

796-7211, extension 4651.

THE PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT IS:

40D-1.659 Forms and Instructions.

The following forms and instructions have been approved by the

Governing Board are incorporated by reference into this Chapter and

may be obtained from the District.

GROUND WATER No Change.

SURFACE WATER




Application for Permit Used for Docks or Piers and Bulkheads

(1) through (5) No change.

(61 MITIGATION BANK PERFORMANCE BOND TO DEMONSTRATE

CONSTRUCTION/IMPLEMENTATION FINANCIAL ASSURANCE

FORM 547.27/MBPB ( /97)

(7.) MITIGATION BANK IRREVOCABLE LETTER OF CREDIT TO

DEMONSTRATE CONSTRUCTION/IMPLEMENTATION FINANCIAL ASSURANCE

FORM 547.27/MBIL ( /97)

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(18. MITIGATION BANK STANDBY TRUST FUND AGREEMENT TO

DEMONSTRATE CONSTRUCTION/IMPLEMENTATION OF FINANCIAL ASSURANCE

FORM 547,27/MBST ( /97)

219 MITIGATION BANK TRUST FUND AGREEMENT TO DEMONSTRATE

CONSTRUCTION/IMPLEMENTATION OF FINANCIAL ASSURANCE

FORM 547,27/MBTF ( /97)

(10) MITIGATION BANK TRUST FUND AGREEMENT TO DEMONSTRATE

PERPETUAL MANAGEMENT FINANCIAL RESPONSIBILITY

FORM 547.27/MBPM ( /97)

Specific Authority 373.044, 373.113 FS. Law Implemented 120.53,

373.113, 373.413, 373.414, 373.416, 373.419, 373.421 FS. History -

New 12-31-74, Amended 10-24-76, Formerly 16J-0.40, 40D-1.901, 40D-

1.1901, Amended 12-22-94, 5-10-95, 10-19-95, 5-26-96, 7-23-96...




The Southwest Florida Water Management District does not

discriminate on the basis of any individual's disability status.

Anyone requiring reasonable accommodation as provided for in the

American's With Disabilities Act should contact Dianne Lee at

(352)796-7211 or 1-800-423-1476, extension 4658; TDD only number 1-

800-231-6103; FAX number (352)754-6878/SUNCOM 663-6878.

C:\WPWIN60\DATA\RULES\04197\NRDMTBKl.CGA




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SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT

RULE CHAPTER TITLE: RULE CHAPTER NO.:

Individual Environmental Resource Permits 40D-4

RULE TITLE: RULE NO.:

Publications and Agreements

Incorporated by Reference 40D-4.091

PURPOSE AND EFFECT:

The purpose and effect of these proposed rule amendments is to

conform the District's requirements for establishing and operating

a mitigation bank to Sections 5 through 7 of Chapter 96-371, Laws

of Florida, (codified at 373.403, 373.4135 and 373.4136, F.S.) and

to simplify and clarify the financial responsibility requirements

for mitigation banks.

SUBJECT AREA TO BE ADDRESSED:

These proposed rule amendments change sections of Appendix 4 of the

Basis of Review for Environmental Resource Permitting to conform

these sections to Sections 5 through 7 of Chapter 96-371, Laws of

Florida. The proposed rule amendments also simplify and clarify

the forms of financial responsibility that must be provided to

insure the construction, implementation and perpetual maintenance

of mitigation banks.



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SPECIFIC AUTHORITY: 120.54(8), 373.044, 373.046, 373.113, 373.171,

373.414 FS.

LAW IMPLEMENTED: 120.54(8), 373.046, 373.103(8), 373.114, 373.403,

373.413, 373.414, 373.416, 373.429, 373.441 FS.

A RULE DEVELOPMENT WORKSHOP WILL BE HELD ON THE TIME, DATE AND

PLACE SHOWN BELOW:

TIME AND DATE: July 31, 1997, 10 a.m. 12 noon

PLACE: Department of Environmental Protection, Main Conference

Room, 2nd Floor, 3804 Coconut Palm Drive, Tampa, Florida 33619.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE DEVELOPMENT

IS: Karen E. West, Assistant General Counsel, Office of General

Counsel, 2379 Broad Street, Brooksville, Florida 34609-6899, (352)

796-7211, extension 4651.

THE PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT IS:

40D-4.091 Publications and Agreements Incorporated by

Reference.

The following documents are hereby incorporated into this

chapter and Chapters 40D-40 and 40D-400, F.A.C.:

(1) "Basis of Review for Environmental Resource Permit

Applications within the Southwest Florida Water Management

District, ___April 17, 1997." This document is

available from the District upon request.

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(2) and (3) No change.

Specific Authority 120.54(8), 373.044, 373.046, 373.113, 373.171,

373.414 FS. Laws Implemented 120.54(8), 373.046, 373.103(8),

373.114, 373.403, 373.413, 373.414, 373.416, 373.429, 373.441 FS.

History New 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.




APPENDIX 4

BASIS OF REVIEW FOR THE ESTABLISHMENT AND USE OF

MITIGATION BANKS

1. Intent. The Evir~nmn tal- Rorganization t eof 10

direct the District to adopt rula governing the creation and uac

of mitigation banko to offoot advorac impact cauacd by activitioo

regulated :undr ParA:t IV of Chapter & 72, -F.. .Thi3 rul, inA

addition to other rulco promulgated under Part IV of Chapter 373,

F.C., ia intended to meet this requirement.

The District recognizes that, in certain instances, adverse

impacts of activities regulated under Part IV of Chapter 373, F.S.,

can be offset through participation in a rmMitigation LBank. This

rule provides criteria for this mitigation alternative to

complement existing mitigation criteria and requirements. This



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rule does not supersede any other criteria and requirements in

rules promulgated under Part IV of Chapter 373, F.S.

The District intends that mMitigation BRanks be used to

minimize mitigation uncertainty associated with traditional

mitigation practices and provide greater assurance of mitigation

success. It is anticipated that the consolidation of multiple

mitigation projects into larger contiguous areas will provide

greater assurance that the mitigation will yield long-term,

sustainable, regional ecological benefits. Mitigation hBanks

should emphasize restoration and enhancement of degraded ecosystems

and the preservation of uplands and wetlands as intact ecosystems

rather than alteration of landscapes to create wetlands. This is

best accomplished through restoration of ecological communities

that were historically present.

A mitigation bank permit authorizes the establishment,

implementation and operation of a mitigation bank, and constitutes

authorization pursuant to 40D-4, 40D-40 or 40D-400, F.A.C., as

applicable, to construct, alter, operate, maintain, abandon or

remove any surface water management system proposed as a part of

the mitigation bank. A mitigation bank conceptual approval permit

estimates the legal and financial requirements necessary for

evaluation of a mitigation bank permit application, and potential

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mitigation credits to be awarded pursuant to a mitigation bank

permit. A mitigation bank conceptual approval permit does not

authorize the use or withdrawal of mitigation credits, or the

construction, alteration, operation, maintenance, abandonment or

removal of any surface water management system within a mitigation

bank.

Nothing in this rule shall affect the mitigation requirements

set forth in any mitigation bank agreement or any permit issued

pursuant to Chapter 84-79, Laws of Florida, or Part IV of Chapter

373, F.S., prior to January 22. 1994 EthO affC'tiv. aCt of thi.

rule. If a permitted wishes to substantially modify a mitigation

bank previously established by agreement or permit, the permitted

must comply with this rule. This rule does not prohibit an

applicant from proposing project-specific, pre-construction on-site

mitigation, or off-site mitigation, without establishing a

nmMitigation sanknk pursuant to thi- ru-e.

2. Definitions. As used in this rule:

(A) Mitigation banker or bhLanker mean Aen entity

that creates, operates, manages, or and maintains a mMitigation

bBank pursuant to a mitigation bank permit.

(B) --Ecological value mrans t TXhe value of

functions performed by uplands. wetlands and other surface waters

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O..n vironmentally c. itive ar-ea. These functions include, but ar

not limited to.- providing cover and refuge: breeding, nesting.

dennincg and nursery areas: providing habitat for wildlifA

corridors for wildlife movementl- food chain support.-- grundwatr

recharge, and natural water storage. -ld natural flow attenuation,

and water quality improvement, which enhances fish. wildlife and

listed species utilization enhancement. (Subsection 373.403(18)

F.S.)

(C) -"Mitigation Ga&ervice iArea means TIhe geographic

area within which mMitigation cGredits from a nMitigation kBank may

be used to offset adverse impacts of activities regulated under

Part IV of Chapter 373, F.S. (Subsection 373.403(21), F.S.)

(D) -Mitigation 2Bank pPermit ." eans Ae permit issued

to a banker to construct, operate, manage and maintain a Mitigation

Bank.

(E) -Mitigation bank meean& A project permitted

under section 373.4136. F.S.. undertaken to provide for the

withdrawal of mitigation credits to offset adverse impacts

authorized by a permit under Part IV of Chapter 373, F.S.

(Subsection 373.403(19) ,. F.S.)

1EL Mitigation Credit A standard unit of measure which

represents the increase in ecological value resulting from

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restoration enhancement. preservation, or creation activities.

(Subsection 373.403(20). FS.)

(G) 4F -^Regional wWatershed" mean A watershed as

delineated in Exhibit 1.

3. Use of a Mitigation Bank.

Use of a mMitigation BSank is an appropriate, dcaable, and

a permittable mitigation option when the mmMitigation 2Bank will

offset the adverse impacts of the project; 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.; or

(B) use of the mMitigation bBank would provide greater

improvement in ecological value than on-site mitigation.

In some cases, a combination of on-site mitigation and

participation in a mMitigation Bank will be appropriate to offset

adverse impacts of a project.

4. Criteria for eatabliahing a Mitigation Dank. The

following criteria hall be met to cotablioh a Mitigation Dank.

(--) The banker hall provide r-a.onable a,1uranc" that

the proporod Mitigation Dank will.

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(-1) ----improv coClog;ical conditicn: of the regioCnal

watorshod,

(2) provide viable and au4tainable ecological and

hydrological functions for the proposed mitigation service arca,

(3) bo offoctivly managed in tho long tcrm,

) not ds-troy arcas with high cological valu,

M) Iachiavc mitigation succss;, and

(C) bo adjacent to lands which will not advorsoly

affect the long term viability of the bank due to unsuitable land

uscs or conditions.

(D) The banker -hall also provide rCasonablC asZuranc3

that y urf. ac watL r manage ment-a a ytem t be strctcd,

altered, operated, maintained, abandoned Cr removed within th-

Hitigation Dank area will meet the condition of ia3uancI of
W J6 -I- .J6 %.o A- %.o J.-L %.v J ,L %.&LJJU." %A ,. Ia.N..J -A.-L L -Lr ,,JJ.














chaptrs. 0D 4.., -- 0D 40, .A.C., r thf terms, cnditiono,

requircmcntsa, limitatiCns and rcstrictiona Cf chapter 40D 400,

F.A.C., as applicabl.

(C) A litigationn Dank may be implemented in phacs. if


each phaIc independently mocts the rc=iremcnt. of sub:ection 4 (A)




A(D) -The bankeor shall.




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%1) hav, ,ufficint legal or quitablo interoct in

the property to meet the rAquirom-nt% of action 10 of thiW rule,



(2) m..t the financial rcaponaCibility ro. ir:.cm.nt

of otion 11 of thia rul .

4~5.- Mitigation Bank Permit Applications and Mitigation Bank

Conceptual Approval Permit Applications. Any person or entity

proposing to establish a mMitigation 1Bank must apply for a

mMitigation hBank nPermit. An application for a mitigation 1Bank

9Permit shall also constitute an application for any permit

required under chapters 40D-4, 40D-40, or 40D-400, F.A.C., to

construct, alter, operate, maintain, abandon or remove any surface

water management system proposed as part of the bank. A separate

application for a permit under chapters 40D-4, 40D-40, or 40D-400,

F.A.C., to construct, alter, operate, maintain, abandon or remove

a surface water management system proposed as part of the

_MiPitigation LBank is not required. Mitigation bank gPermit

applications shall be processed according to Chapter 120, F.S. To

provide the District with reasonable assurance that the proposed

mMitigation bBank will meet the criteria in section 373.4136. F.S..

Appendix. -4 and that any proposed system within the mMitigation

bBank will meet the applicable criteria of chapters 40D-4, 40D-40,

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or 40D-400, F.A.C., each mMitigation bank tPermit application

submitted to the District shall include the information required

under chapters 40D-4, 40D-40, or 40D-400, F.A.C., as applicable,

and the information specified below as appropriate for the proposed

bank:

(A) A description of the location of the proposed

mMitigation bank which shall include:

(1) a map at regional scale showing the proposed

mMitigation kBank site in relation to the regional watershed and

proposed mitigation service area;

(2) a vicinity map showing the proposed mMitigation

kBank site in relation to adjacent lands and offsite areas of

ecologic or hydrologic significance which could affect the

perpetual ~e-g term viability or ecological value of the bank;

(3) an aerial photograph identifying boundaries of

the proposed mMitigation bBank site;

(4) a highway map showing points of access to the

proposed mMitigation ]Bank for site inspection; and

(5) a legal description of the proposed nmMitigation

bBank.






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(B) A description of the ecological significance of the

proposed mMitigation kBank to the regional watershed in which it is

located.

(C) A description and assessment of current conditions

at the proposed mMitigation Bank site which shall include:

(1) a soils map of the proposed nMitigation 1Bank

site;

(2) a topographic map of the proposed _nMitigation

]Bank site and adjacent hydrologic contributing and receiving

areas;

(3) a hydrologic features map of the proposed

mMitigation bBank site and adjacent hydrologic contributing and

receiving areas;

(4) current hydrologic conditions in the proposed

mMitigation 1Bank site;

(5) a vegetation map of the proposed mMitigation

bank site;

(6) ecological benefits currently provided to the

regional watershed by the proposed _mMitigation bank site; and

(7) No change.






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(D) A mitigation plan describing the actions proposed to

establish, construct, operate, manage and maintain the rmMitigation

bank which shall include:

(1) through (4) No change.

(5) a detailed perpetual long term management plan

comprising all aspects of operation and maintenance, including

water management practices, vegetation establishment, exotic and

nuisance species control, fire management, and control of access;

and

(6) No change.

(E) An assessment of improvement or changes in

ecological value anticipated as a result of proposed mitigation

actions which shall include:

(1) a description of anticipated site conditions in

the mMitigation bBank after the mitigation plan is successfully

implemented;

(2) and (3) No change.

(F) Evidence of sufficient legal or equitable interest

in the property which is to become the nMitigation bkank to meet

the requirements of section 17 a of this Rule.

(G) Draft documentation of financial responsibility

meeting the requirements of section .8 +-1 of this Rule.

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(H) Any additional information which may be necessary to

evaluate whether the proposed mMitigation 1Bank meets the criteria

of section 373.4136, F.S., and this rule apter.

A person or entity who wishes to obtain an estimation of the

legal and financial requirements necessary for a mitigation bank,

information necessary for evaluation of a mitigation bank permit

application, and potential mitigation credits to be awarded

pursuant to a mitigation bank permit, may apply for a mitigation

bank conceptual approval permit. An application for a mitigation

bank conceptual approval permit shall contain the information

listed in paragraphs (A) through (H) above.

5 .- Establishment of Mitigation Credits.

(A) Based upon the information submitted by the

applicant, and an assessment of the proposed mMitigation 2Bank

pursuant to the criteria of section 373.4136. F.S.. in this rul,

the District will assign a number of mitigation Qcredits to the

proposed mmMitigation bBank, or phases thereof.

(B) A Mitigation Crcdit a unit of moazuro which

r-prc.cnt3.the ..incrcaa..in. .cological valu.. rc.ultin..from

rcstoration,-cnhanccmcnt,-prcscrvation,- r crcation-activitic3.

For purp.oca of c.tabli.hing a standardd unit of mca.ur., Qene

mMitigation cGredit is equivalent to the ecological value gained by

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the successful creation of one acre of wetland. Mitigation

c.Gredits assigned for enhancement, restoration or preservation of

wetlands or uplands will be based on the extent of improvement in

ecological value resulting from these activities relative to that

obtained by successfully creating one acre of wetland. In

determining the degree of improvement in ecological value, the

following factors in subsection 373.4136(4). F.S., will be

considered,- However, no mitigation credits shall be released

prior to meeting the criteria of sections 7 and 8 .

(1) The Extent to which targAt hydr:logic rcgimc

can be achieved and maintained.

(2) The xCtent tC which management activitica

promote natural cological condition, including natural fire



(3) The proximity of other regionally significant

ecological reozurc3 or habitats, -uch aa land acquired or to bo

acquired through governmental Cr non profit land acquisition

program for environmental conacrvation, and the catabliahmznt of

corridera to thcoc rcaourcca or habitat.

(4) The quality and quantity of wetland or upland

r4toration, enhancement, prcacrvation, or creatiCan.



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(5) The ecological and hydrological -rclationahip

betwoon wctlanda and upland in the Mitigation Dank.

~----4~ ( ) The 44xtnt to which th -Mitigation Dank

providca habitat for fich and wildlife, capccially habitat for

spocica listed ac threatened, endangered or of accial concern, or

provide habitat which are unique for that mitigation -ervico

area.

,(7) Thoe xt ,nt to which the l -and that :arc to b

procrvod arc already protected by crxiting ctato, local or federal

regulationa or land uce rcatrictionz.

(8/) rThe extent that land. to be pro3.rved would be

adveraoly affected if they were not prccorvcd.

(5) -ny opccial dcaignation or clarification of

the affected watcra and land.

%(C) No credit %hall be available for frchwater wetland

creation until the cucccoo of the created wctlandc ic dcmonotratcd.
a-..WV4"L. ,.&-IFVV 46. 6 .O .i.6 r %&.L.. J,6, ,,&-A-,%.ofJI ,J%. o I, ,L L-1- ---, ,,,We














nD) yeome Mitigation Crcdita may be withdrawn prior to

meeting all of the perforance criteria apccificd in the Mitigation




of croditc and achcdul4 for rclea4 s hall
be determined baed upon th .prfo ance criteria for t





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activity. A MitigationDank% will be crJdited% with. i maximum

number of Mitigation Credita only after meeting the mitigation

3uccOZJ criteria apocificd in the permit.

(-)- Mitigation Crcdita available for withdrawal may be

tranafcrrod, -old or uacd aubjact to the prov=iion3 of this rule.

iE(B)_)- If at any time the banker is not in material

compliance with the terms of the nmMitigation bBank permit, no

uMitigation gGredits may be withdrawn. Mitigation credits shall

again be available for withdrawal when the banker comes back into

compliance.

(C)44- The mMitigation bBank pPermit shall contain a

ledger listing the number and type of mitigation _credits in the

mMitigation hBank. The ledger will provide the maximum number and

type of mMitigation cGredits which would be available for

withdrawal when the ?Mitigation ]Bank meets all of the performance

criteria in the permit.

_(D~)4-- Mitigation ^credits may be sold whole or in

part at the banker's discretion. Mitigation ^credits may be sold

or resold until they are used to offset adverse impacts.

(E)4-I4- The District shall maintain a ledger of the

mMitigation CGredits available in each mMit igat ion hBank.

Mitigation cGredits shall be withdrawn as a non-substantial

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modification of the mMitigation bBank pPermit. To withdraw

mMitigation credits, the permit applicant proposing impacts must

submit to the agency permitting the impact, documentation from the

banker that m?4itigation cGredits have been reserved, sold or

transferred to the permit applicant and requesting that the

mMitigation cGredits be withdrawn from the nmMitigation bBank. If

the agency permitting the impact determines that use of the

IMitigation cGredits offsets impacts, it shall notify the District.

Upon receipt of this notice, the District shall determine if a

sufficient number of MFitigation cEredits are available, withdraw

the mMitigation credits, and notify the agency permitting the

impact and the banker by letter of the withdrawal of the

mMitigation QGredits and the remaining balance of mMitigation

gGredits.

(F)_4+- When the District is the banker, the District

shall maintain its own ledger. The District shall annually submit

a report of the mMitigation credits sold, transferred, or used

from its mMitigation bBank to the Department.

7. -Contribution of Land. A permit applicant may contribute

land to a Mitigation Dank if.





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(A-) tho advorac impact to bo offa ct by the land

donation arc within the mitigation acrvicc area, xcopt ao provided

in Section (C), of the itigation Dank,

( 1-D) 3the land will offa ct adversoc impact of the propoacd




(C) the land ic adj acnt to or will b co me a Di strict

approved Mitigation Dank,

-(D) the land will improve or enhance th-e e logical

value of a strict approved Mitigation Dank,

(E- ) the land will beencumbered pursuant to the
Uo. 46 %,p J6 VV -4..6. -L.-- I-A ,...6e (m m lqW %lm m %w _L rL,'.' ,,, ,,oA,6 R.b,,%,,0









rCquir m-nto of L -ction 10 of thi9 rule, and

(F) the grante.. of the conservation cacment or f7c

simple intercat agroco to accept ouch conveyance.

C). Contribution of Fundo. Fund may be contributed to a

Mitigation Dank by purchasing M litigation Crdit.a from the banklr.,
&F-J 04 .L ,i. A.rrF ,..-.. % 3






6.9- Mitigation Service Area.

(A) A mMitigation Saervice .Area will be established for

each mMitigation kBank in the mMitigation bBank gPermit pursuant to

the criteria of subsection 373.4136(6). F.S. Except ao provided

h.r.in, Mitigation Crodito may only b, withdrawn to offoct adv.r.c

impact in the Mitigation -ervicc Area. The nMitigation service

RArea will typically be co-extensive with the regional watershed in

18 -










which the nmMitigation kBank is located, however, the extent of the

nMitigation aGervice ;Area will depend upon whether adverse impacts

within the mMitigation a-ervice AArea can be adequately offset by

the mMitigation hBank.
J I& & &-A A.%w -1. v -L. 6-% o.
(D) -A Mitigation Cervice Arca may be larger than th

regional watcrahed if adveroc impact- to wetland ooutaide the

regional watcrahod could be adequately offa3t by the Mitigation

Dank because of local ecological or hydrological condition A




such as in an aquatic precerve, Outatanding Florida Water, or Area

-f Critical State Concern, if advorac impact throughout the

regional watcrahcd could not be offoct by theo Mitigation Dank

bccauoc of local ecological or hydrological condition.

(B)4--- Mitigation QService rAreas may overlap and

multiple "Mitigation S&ervice RAreas may be approved for a regional

watershed.

(D) In addition to projccto located wholly within the

Mitigation Dervice Arca of a Mitigation Dank, the following

projccto arc eligible to uze a Mitigation Dank if the requiremcnta

in ocction 3 arc met.

-(1) project partially located within th

Mitigation -ervice Area, including linear projccto, ouch as

19 -










roadwaya, tranami3aion linco, distribution lincz, pipolinoa, or

railway,, which intraact a Mitigation service Arca, or

(2) project with total adverse impact- of l033

than one half acre in 3 e1Z.

(014B4- When mMitigation credits are applied to offset

adverse impacts within the regional watershed, the mitigation

credit requirement shall be the same as that specified for

mitigation on the project site.

(D)4I4- When mnMitigation credits are applied to offset

adverse impacts outside the regional watershed, the mitigation

credit requirement may be higher than that specified for mitigation

on the project site, as appropriate.

.7 .-- Land Use Restrictions on Mitigation Banks.

(A) Before mMitigation cGredits may be used from a

mM4itigation aBank or any phase of a m4mitigation aank, the banker

shall either (1) cause a fee simple interest to be conveyed to the

District, or (2) cause a conservation easement to be conveyed to

the District. The grantor of a conservation easement may convey a

conservation easement to additional grantees, but such conveyance

shall be subordinate to the conservation easement granted to the

District. Mitigation hBanks on F{-ederal-y or state owned land

shall be encumbered in perpetuity by conservation easements or

20 -









other mechanisms ensuring preservation in accordance with the

mMitigation hBank permit.

(B) All conservation easements shall be granted in

perpetuity without encumbrances, unless such encumbrances do not

adversely affect the ecological viability of the mMitigation bBank.

All conservation easements shall be of a form and content

sufficient to ensure preservation of the mMitigation -Bank

according to the permit, and shall, at a minimum, meet the

requirements and restrictions of Section 704.06, F.S., except as

provided in the nmMitigation kBank permit, and meet the requirements

of subsection 7 (H) .

(C) All real property conveyances shall be in fee simple

and by statutory warranty deed, special warranty deed, or other

deed, without encumbrances that adversely affect the District's

title in the mMitigation kBank property or preservation of the

mMitigation bBank according to the permit. The District shall

accept a quit claim deed if necessary to aid in clearing minor

title defects or otherwise resolve a boundary question in the

mMitigation tbank.

(D) As part of providing reasonable assurance that the

mitigation bank site will be preserved in perpetuity, t+he grantor

of the property or conservation easement shall provide the

21 -










following unless the District determines during the permit review

process that such items are not necessary to ensure preservation of

the mmMitigation b~Bank according to the permit:

(1) A boundary survey of the real property interest

being conveyed or the area within the c..on. ovation caemCnt. The

survey must be certified, by a land surveyor, registered in the

State of Florida, to ees meeting the requirements of the District,

and the minimum technical standards set forth by the Florida Board

of Professional Land Surveyors in Chapter 21HH-6 1G+17 F.AC

Florida Admini-trativc Code, pursuant to ~Section 472.027, F.S.

(2) No change.

(3) AtLuranco of the marketability of the intcrcat

in real property b.ing acquired in the form of At marketable title

commitment issued to the District as beneficiary and owncr'- title

policy (ALTA Perm D) in an amount at least equal to the fair market

value, as established in subsection (2), of the interest being

conveyed r-al prcpCrty. An owner's title insurance policy (ALTA

Form B) naming the District as beneficiary shall be issued to the

District within the time frames specified by the permit. The

coverage, form and exceptions of the title insurance policy shall

ensure that the mMitigation Bank will be preserved according to

the mmMitigation kBank permit.

22 -










(4) If a fee simple intcrcat iC being convCeyd, A-a

Phase I environmental audit identifying any environmental problems

which may affect the liability of the District and any additional

audits as necessary to ensure that the District is not subject to

liability under Federal or State laws relating to the treatment or

disposal of hazardous substances or ownership of land upon which

hazardous substances are located, or to ensure that there are not

hazardous substances present on the property which would adversely

affect construction, implementation and perpetual management of the

mitigation bank.

(E) The grantor shall pay the documentary revenue stamp

tax and all other taxes or costs associated with the conveyance,

including the cost of recording the deed or conservation easement

and any other recordable instruments required by the District,

unless prohibited or exempt by law, as a condition of the receipt

of the conveyance.

(F) All real estate taxes and assessments which are or

which may become a lien against the property shall be satisfied of

record by the banker grantor before or at closing. If necessary,

the banker grantor shall, in accordance with Section 196.295, F.S.,

place funds in escrow with the county tax collector. The

mitigation banker shall also provide the District with annual

23 -










documentation demonstrating that such taxes and assessments have

been paid.

(G) The banker rantor shall remove all abandoned

personal property and solid waste from the property that reduces

the proposed ecological value of the property, will adversely

affect the construction, implementation or management of the bank,

will adversely affect the construction, alteration, operation,

maintenance, abandonment or removal of any surface water management

system to be constructed in the bank or poses a substantial risk of

liability to the District, as a condition of receipt of the

conveyance.

(H) The- grantor aha.l provide in I-h e conservation

easement shall provide that the banker shall have access to the

property to perform all acts necessary to comply with the

mf4itigation hBank -Permit, and the District shall have access to

perform these acts, but without the obligation to do so, if the

banker fails to do so.

(I) The banker shall record the conservation easement or

property deed within 30 days of issuance of the nmMitigation 3b.ank

pPermit, or as otherwise required in the nMitigation 3Bank gPermit.

The banker shall submit to the District a certified copy of the

recorded conservation easement or property deed within 30 days of

24 -









recording. The banker shall submit to the District the original

recorded conservation easement or property deed as soon as such

document is returned from the public records office,

8.L-- Financial Responsibility.

(A) To provide reasonable assurance that the proposed

mMitigation kBank will meet the requirements of section 373.4136.

F.S.. this rule and the associated permit conditions, non-

governmental bankers shall provide proof of financial

responsibility for: (1) the construction and implementation phase

of the bank, and (2) the perpetual loi taErm management of the

bank, as required in this rule. Governmental entities shall

provide proof of financial responsibility pursuant to Section L.

(L) (1) (I) of thiC r-le. The amount of financial responsibility

provided in the mechanisms required in this rule shall be based on

the cost estimates determined pursuant to section 8. (J) (1 (+F+.

(B) Submitting Financial Responsibility Documentation.

The applicant shall provide draft documentation of the required

financial responsibility mechanisms described below with the permit

application, and shall submit to the District the executed or

finalized documentation within the timeframes specified in the

permit. The provisions of this section shall also apply for any

modifications to the Mitigation Bank Permit.

25 -









(C) General Terms for Financial Responsibility

Mechanisms. In addition to the specific provisions regarding

financial responsibility mechanisms for construction and

implementation in subsection 8 (D) and perpetual lne- 1terr

management in subsection 8. (I)-(--, the following terms shall be

complied with:

(1) The financial mechanisms shall name the

Dictr"ict a ola beneficiary or shall be payable at the direction

Qf solely to the District to its designee or to a standby trust

agreement. If the financial responsibility mechanism is of a type

which is retained by the beneficiary according to industry

standards, it shall be retained by the District.

(2) Demonstration of financial responsibility shall

be continuous until complete satisfaction of the applicable permit

conditions and approved release of financial responsibility by the

District.

(3)1 All financial mechanisms must guarantee that

the banker will perform all of its obligations under the permit.

and provide alternative financial assurance as allowed by this

section, and obtain the District's written approval of the

alternative assurance provided, within 90 days after receipt by



26 -










both the banker and the District of a notice of cancellation of a

bond or intent not to extend expiration date of a letter of credit.

(4) A banker may satisfy the requirements of this

section by establishing more than one acceptable financial

mechanism per mitigation bank,

(5) A banker may use a financial assurance

mechanism allowed under this section for more than one mitigation

bank. The amount of funds available through the mechanism must be

no less than the sum of funds that would be available through

separate mechanisms acceptable for each mitigation bank.

L6) A banker must notify the District by certified

mail within 10 days after the commencement of a voluntary or
--V

involuntary proceeding i) to dissolve the banker, ii) to place the

banker in receivership, or iii) for entry of an order for relief

against the banker under Title 11 of the United States Code. A

banker may not assign its assets for the benefit of creditors. A

banker will be deemed to be without the required financial

assurance in the event of a bankruptcy of the trustee of any trust

provided under this rule. or the suspension or revocation of the

authority of any trustee to act as trustee, or in the event of a

bankruptcy the issuing institution of any bond or letter of credit.

or the revocation of the authority of such institution to issue

27 -










such instruments. The banker must notify the District within 10

days, and establish other financial assurance within 60 days after

such an event.



..- A. & L .L ..J. L A %.., L -L... %..,4. r e s ...6 b0 J6 J6-%.,'L .,L, --L ,,.,J6 .-.L
(2) The financial roaponaibility mechaniama ahall

bew ctabli&hed with a state or national bank, -aving and loan

acaociation, or other financial institution, licensed in thi3 atato

with an amount of Foderal Deposit Incuranco Corporation in-urance









permit condition.

(41) The financial roponaibility mochaniama hall

not be terminated or cancelled by the banker. Within 00 daya of

.ceipt of a notice of cancellation of a financial rseponaibility

mochaniam or other actual or constructive notice of cancellation,

the- banker hall provide an alternate financial raponaibility

mochaniam which meta the rquircmonto of thio rule.

(%---L) If the Mitigation Dank haw failed to comply

with the trmoa and condition of the permit, the Ditrict, up on

ro%.onabl. notice,Lmay draw upon the financial mochaniomr.

(D) Financial Responsibility for Construction and

Implementation.

28 -










(1) No financial responsibility shall be required

where the construction and implementation of the niMitigation kBank,

or a phase thereof, is completed and successful prior to the

withdrawal of any credits.

(2) Financial responsibility for the construction

and implementation of each phase of the mMitigation kBank may be

established by surety garanat~ e bonds, performance bonds, insurance

crtificatc irrevocable letters of credit, or trust funds

agrc m nta, or ac critical. If a bond or an irrevocable letter of

credit ji ere used as the financial mechanism, a standby trust fund

shall be established, a for -- ting- tandard- industry

practieee in which all payments under the bonds or letter of

credit shall be directly deposited.

(3) The amount of financial responsibility

established shall equal 110% of the cost of construction and

implementation of each phase of the mMitigation 1Bank which is

being constructed and implemented, purouant to --tion- (11) (F) cf

thio rule. When a current phase has been completely constructed

and implemented in compliance with the permit, the respective

amount of financial responsibility shall either be released, or

transferred to the long term management financial responsibility

mechanism.

29 -









(4) The financial responsibility mechanism shall

become effective prior to the release of any mitigation credits, e*

least CO days prior to initiation of construction of the next phaao

of the Mitigation Dank, or as otherwiac required by the Mitigation

Dank permit prior to initiation of implementation and conatruction

of the aubjLcet phao.

..L Surety or Performance Bond,

() A banker may satisfy the requirements of

section 8. (D) by obtaining a surety or performance bond that

conforms to the requirements of this subsection. The company

issuing the bond must be among those listed as acceptable sureties

on federal bonds in the latest Circular 570 of the U.S. Department

of the Treasury, or a Florida-domiciled surety or insurance company

with at least an A-rating in the latest printing of the A.M. Best's

Key Rating Guide to write individual bonds up to 10 percent of the

policyholder' s surplus. The banker shall provide proof that the

bond company meets these requirements.

(2). The surety or performance bond shall be worded

in substantial conformance with FORM 547.27/MBPB. Deviations from

the form shall be identified and submitted to the District for

review and approval.



30 -










(3) Under the terms of the bond. the surety shall

become liable on the bond obligation when the mitigation banker

fails to perform as guaranteed by the bond. In all cases, the

surety's liability shall be limited to the sum stated therein.

(4) The mitigation banker who uses a surety or

performance bond to satisfy the requirements of section 8. (D) must

establish a standby trust fund when the surety or performance bond

is acquired. Under the terms of the bond. all amounts paid by the

surety under the bond will be deposited directly into the standby

trust fund for distribution by the trustee in accordance with the

District's instructions. The standby fund agreement must meet the

requirements specified in section 8.(G).

(5) Notice of cancellation of a bond must be made

by certified mail to the banker and to the District. Cancellation

may not occur, however, during the 120 days beginning on the date

of receipt of the notice of cancellation by both the banker and the

District, as evidenced by the return receipt.

(6) A bond may be canceled by the banker if the

District has given prior written consent. The District shall

provide such consent when either the banker substitutes alternative

financial assurance allowed under this rule and such alternate

financial assurance is approved by the District and is effective;

31 -









or the District releases the banker from the requirements of this

section.,

(F) Irrevocable Letter of Credit.

(1) A mitigation banker may satisfy the

requirements of section 8. (D) by obtaining an irrevocable letter of

credit that conforms to the requirements of this subsection. The

irrevocable letter of credit shall be provided by a federally

insured depository that is "well capitalized" or "adequately

capitalized" as defined in Section 38 of the Federal Deposit

Insurance Act. The banker shall submit proof of such

capitalization to the District.

(2) The irrevocable letter of credit shall be

worded in substantial conformance with FORM 547.27/MBIL.

Deviations from the form shall be identified and submitted to the

District for review and approval.

(3) A mitigation banker who uses an irrevocable

letter of credit to satisfy the requirements of section 8. (D) must

also establish a standby trust fund when the irrevocable letter of

credit is acquired. Under the terms of the irrevocable letter of

credit, all amounts paid pursuant to a sight draft by the District

will be deposited by the issuing institution directly into the

standby trust fund to be distributed by the trustee in accordance

32 -









with instructions from the District. This standby trust fund must

meet the requirements specified in section 8.(G).

(4) Letters of credit must be irrevocable and

issued for a period of at least one year, and the expiration date

must be automatically extended for a period of at least one year

unless, at least 120 days prior to the expiration date. the issuing

institution notifies both the banker and the District by certified

mail of a decision not to extend the expiration date. The terms of

the irrevocable letter of credit must provide that the 120 days

must begin on the date when both the banker and the District

received the notice. as evidenced by the return receipts.

LG) Standby Trust Fund.

(1i A mitigation banker using a surety or

performance bond or irrevocable letter of credit shall establish a

standby trust fund when the mechanism is acquired. The trustee of

the standby trust fund shall be an entity that has the authority to

act as a trustee and whose trust operations are regulated and

examined by a Federal agency or an agency of the state in which the

fund is established. The banker shall provide proof of such

regulation and examination to the District.

(2) The standby trust agreement shall be worded in

substantial conformance with FORM 547.27/MBST in Appendix N.

33 -










Deviations from the form shall be identified and submitted to the

District for review and approval.

L() Trust Fund,

(1) A mitigation banker may satisfy the

requirements of section 8. (D) by establishing a trust fund that

conforms to the requirements of this section. The trustee of the

trustee fund shall be an entity that has the authority to act as a

trustee and whose trust operations are regulated and examined by a

Federal agency or an agency of the state in which the fund is

established. The banker shall provide proof of such regulation and

examination to the District.

( 2 ) The trust agreement must be worded in

substantial conformance to a FORM 547.27/MBTF. Deviations from the

form shall be identified and submitted to the District for review

and approval.



(I)4()- Financial Responsibility for Perpetual the Long

Tem Management.

(1) A banker shall establish a trust fund agreement

to provide financial responsibility for perpetual the long term

management of the mMitigation bank, or phase thereof. The trust

fund may be in the form of a standby trust fund for an irrevocable

34 -










letter of credit or surety or performance bond. Where a standby

trust fund is used. the irrevocable letter of credit or surety or

performance bond used must meet the requirements of sections 8. (F)

and 8.(E) respectively except all references to construction and

implementation shall be changed to perpetual management. The

trustee of the trust fund shall be an entity that has the authority

to act as a trustee and whose trust operations are regulated and

examined by a Federal agency or an agency of the state in which the

fund is established. The banker shall provide proof of such

regulation and examination to the District. Trust fund agreements

for perpetual management shall be worded in substantial conformance

with FORM 547,27/MBPM, Deviations from the form shall be

identified and submitted to the District for review and approval

Submitted in a f rmat which m. ct otand.ard industry practi ca.

(2) The amount of financial responsibility

shall provided shall be sufficient to be reasonably expected to

generate annual revenue equal to the cost of Derpetual efng term

management, established pursuant to Section (8) (J) (+- at an

assumed rate of return of six percent per annum. of thi, rule, for

all previously constructed phases and the current phase for which

credits have been approved for withdrawal.



35 -










(3) The trust fund agreement shall be

effective and fully funded at least 60 days prior to the withdrawal

of credits from the mMitigation bBank, or applicable phase thereof,

or as otherwise provided in the mMitigation kBank pPermit prior to

the withdrawal of credits.

(J)+44- Cost estimates.

(1) For the purposes of determining the amount

of financial responsibility that is required in this rule, the

banker shall submit three a detailed written estimates, in current

dollars, of the total cost of construction, implementation of the

estimated cost of perpetual and lon- term management of the

mMitigation bBank.

(2) The cost estimate for construction and

implementation shall include all costs associated with completing

construction and implementation of the mMitigation 1Bank, or phase

thereof, including, as applicable. earthmoving, planting,

exotic/nuisance vegetation removal, land surveying, structure

installation, consultant fees, monitoring activities and reports.

(3) The cost estimate for the perpetual long

teer management of the mMitigation Bank shall be based on the

costs of maintaining and operating any structures, controlling

nuisance or exotic species, fire management, consultant fees,

36 -









monitoring activities and reports, and any other costs associated

with perpetual eng term management. The amount of financial

responsibility shall equal the cost of perpetual Iong t~- e

management for all previously constructed phases and the current

phase for which the withdrawal of credits is imminent.

(4) The banker shall submit written cost the

estimates or other t gther with verifiable documentation, to the

District along with the proof of financial responsibility

mechanism.

(5) No change.

I(K)4G- Cost adjustments.

(1) The banker shall, c Every two years, the

banker shall undertake an estimate of the costs remaining for

adjust the amount of financial rcapon-ibility provided for

construction, implementation and perpetual l tr-- management

Evr.y two .ycar: t The banker shall submit the estimate to the

District in writing a coat -adjuotm-nt "-at mnt accompanied by

supporting documentation. Construction and implementation and

perpetual long trme management costs shall be listed separately.

The District shall review the cost adjustment statement and

supporting documentation to determine if it reflects all

construction, implementation, and perpetual long trc* management

37 -










costs. If the cost adjustment statement and supporting

documentation accurately reflects a good faith estimate of all

construction, implementation and perpetual ~-g-t erm management

costs, the District shall approve the cost adjustment statement.

(2) At each cost adjustment, the banker shall

revise the construction and implementation cost estimate for

inflation and changes in the costs to complete the current phase of

the mMitigation BEank or appropriate phase thereof.

(3) No change.

(4) Revised cost estimates shall be used as

the basis for modifying the financial mechanism. If the value of

the financial mechanism is less than the total amount of the

current construction, implementation and perpetual long-term

management cost estimates, the banker shall, upon District approval

of the cost adjustment statement, increase the value of the

financial mechanism to reflect the new estimate within 60 days. If

the value of the funding mechanism is greater than the total amount

of the current cost estimate, the banker may reduce the value of

the funding mechanism to reflect the new estimate upon receiving

District approval of the cost adjustment statement.

(5) The District shall require adjustment of

the amount of financial responsibility provided for construction,

38 -









implementation or perpetual long term management at times other

than the cost adjustment period when estimated the costs associated

with compliance with the permit conditions exceed the current

amount of financial responsibility and such financial assurances

are deemed necessary to ensure compliance with the permit

conditions.

((L)4TH- Financial Responsibility for Governmental,

Non-Department, Mitigation Banks.

(1) Governmental entities other than the

Department shall demonstrate that they can meet the construction

and implementation requirements of the :M4itigation kBank permit by

any of the mechanisms in .Section 8.--(D) above, or by other

financial mechanisms which meet the requirements of 8(C)3. 6..

(D)3. and 4, and section 8(J) thick rue.

(2) Governmental entities other than the Department

shall establish a trust fund -r other financial mc chaniCam

acceptable. t the Diatrict which are -ufficient t meet the

rcquircmontc of thick rule for the perpetual long ee~m management of

the mMitigation bBank in accordance with subsections eetion i(1)2

and 3 1~~--B above. The trust fund agreement for perpetual long

term management may be funded as _mMitigation .Gredits are

withdrawn, provided that the trust fund agreement is fully funded

39 -










when all mMitigation cGredits are withdrawn. The cost adjustment

provisions in section 8(J) 11(G) shall be complied with.

92.2-- Mitigation Bank Permit and Mitigation Bank

Conceptual Approval. If the mMitigation bank proposal meets the

criteria of section 373.4136. F.S.. and this rule, the District

shall issue 4 mMitigation bBank pPermit to the banker. A permit

under this rule may be issued in two forms, a mMitigation bBank

pPermit or a mMitigation bBank cGonceptual aApproval.

(A) The nmMitigation bBank gPermit authorizes the

implementation and operation of the mMitigation hBank and sets

forth the rights and responsibilities of the banker for the

implementation, management, maintenance and operation of the

Mitigation Bank. The mMitigation 4Bank permit shall include the

following:

(1) A description of the _mMitigation service

aArea.

(2) The maximum number of mMitigation cfGredits

available for use when the mMitigation brBank, or phase thereof, is

deemed successful, the type of mMitigation cGredits awarded, and

the number and schedule of rnMitigation credits available for use

prior to success.



40 -









(3) The success criteria by which the

mMitigation -bank will be evaluated.

(4) The financial responsibility mechanisms)

which must be employed by the banker -'including the4 procdur for

drawing on the financial mochaniama by the Dietrict, and provisions

for adjustment of the financial responsibility mechanism.

(5) Requirements for the execution and

recording of the conservation easement or conveyance of the fee

interest as provided in section 2- of this rule.

(6) A ledger listing mMitigation cGredits

available in the mMitigation bBank.

(7) A schedule for implementation of the

mMitigation bank, and any phases therein.

(8) The perpetual elng--term management

requirements for the nFmitigation kB~ank.

(B) A _mMitigation 1Bank pPermit shall automatically

expire five years from the date of issuance if the banker has not

recorded a conservation easement or conveyed fee simple interest,

as appropriate, over the real property within the nMitigation

bBank, or phase thereof, in accordance with the nM4itigation Bank

gPermit. Except as provided above, a n4itigation Bank IPermit

shall be perpetual unless revoked or modified.

41 -










(C) A mMitigation kBank cGonceptual iApproval

estimates the legal and financial requirements necessary for the

mitigation kBank, information necessary for evaluation of the

mMitigation bBank pPermit application, and potential mMitigation

cGredits to be awarded pursuant to the mMitigation kBank pPermit.

The mMitigation -Bank cGonceptual aApproval gPermit does not

authorize the use or withdrawal of mMitigation credits or any

construction within the bank. The level of detail provided in the

mMitigation bBank EGonceptual aApproval -Permit will depend on the

level of detail submitted with the application. A mMitigation

hBank QConceptual aApproval shall be valid for a term of five years

from the date of issuance.

10. 4r- Surrender, Transfer, or Modification of

Mitigation Bank Permits.

(A) If no credits have been sold or used. a A

banker may apply to surrender a mMitigation DBank permit, or

permitted phase thereof, by submitting a written request to the

District. The written request must identify which phase of the

mMitigation hBank will be surrendered, indicate the extent of

mitigation work performed in that phase, and describe the

conservation property interest encumbering that phase. The

District shall authorize release from a _mMitigation 3Bank permit

42 -









when no credits have been used and relinquishment of the phase

would not compromise the ecological value of the remaining portions

of the _mMitigation bBank.

(B) If a property interest has been conveyed as

provided in aSection 72- for a mmMitigation kBank permit which is

surrendered as provided above, the District shall convey the

property interest back to the grantor of that interest.

(C) If a surface water management system has been

constructed, altered, operated, or maintained within the

mMitigation kBank, the banker shall obtain any permits required

under chapters 40D-4, 40D-40, or 40D-400, F.A.C., to complete the

construction, alteration, operation, or maintenance, or to abandon,

or remove the surface water management system.

(D) To transfer a mMitigation 2Bank -Permit, the

banker shall meet the requirements of section 40D-4.351 or 40D-

40.351, as applicable, and the entity to which the permit will be

transferred must provide reasonable assurance that it can meet the

requirements of the permit action 10 and 11 of this rule.

(E) A mMitigation bBank gPermit can be issued as a

modification of a _mMitigation bBank CGonceptual sApproval.

11. .- Department of Environmental Protection

Mitigation Banks. The Department may construct, operate, manage,

43 -









and maintain a mMitigation bBank pursuant to this rule after

obtaining a mMitigation bBank gPermit from the District.

(A) The Department may apply to establish a

mMitigation ]bBank by submitting a mMitigation bank plan, meeting

the applicable permitting criteria of this rule, in one of the

following formats:

(1) A mMitigation bBank plan identifying one

or more parcels of lands to be acquired for mitigation site(s).

(2) A mMitigation bBank plan identifying one

or more parcels of land in which the District has a legal or

equitable interest.

(B) Land Use Restrictions on Department Mitigation

Banks. The Department shall maintain the land within the

m4mitigation kBank pursuant to the terms of the mMitigation bank

permit. Any change in the land use shall require a modification

of the mMitigation jBank pPermit.

(C) Department Financial Responsibility. A portion

of the funds contributed to a Department mMitigation hBank from the

sale of credits shall be dedicated for the construction and

implementation of the mMitigation bBank, and a portion of the funds

shall be dedicated for the perpetual long term management of the

bank as set forth in the mMitigation bBank gPermit. Funds derived

44 -










from the sale of mMitigation cGredits which are not necessary for

the construction, implementation, and perpetual efg ter-

management of a Department mMitigation kBank shall be dedicated for

the initiation of other Department nMitigation bBanks or expansion

of other Department land acquisition or restoration projects which

improve regional ecological conditions.

(D) Procedures for Establishment of Mitigation

Banks. Mitigation bBanks established by the Department shall be

permitted pursuant to the procedures of that certain Operating

Agreement Concerning Regulation Under Part IV, Chapter 373, F.S.

Between Southwest Florida Water Management District and Department

of Environmental Protection, dated September 27, 1994.

The Southwest Florida Water Management District does not

discriminate on the basis of any individual's disability status.

Anyone requiring reasonable accommodation as provided for in the

American's With Disabilities Act should contact Dianne Lee at

(352)796-7211 or 1-800-423-1476, extension 4658; TDD only number 1-

800-231-6103; FAX number (352)754-6878/SUNCOM 663-6878.

C: \WPWIN6 0\DATA\RULES\ 0 4197\NRDMTBK4. CGA








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