Title: DER's Proposed Mitigation Rule, Ch. 17-12.3, from Biological Research Associates, Inc.
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 Material Information
Title: DER's Proposed Mitigation Rule, Ch. 17-12.3, from Biological Research Associates, Inc.
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: DER's Proposed Mitigation Rule, Ch. 17-12.3, from Biological Research Associates, Inc.
General Note: Box 7, Folder 1 ( Vail Conference 1987 - 1987 ), Item 42
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00000649
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

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(



V- T T BIOLOGICAL RESEARCH ASSOCIATES, INC.


RE: DER's Proposed Mitigation Rule, Chapter 17-12.3




Passage of the Warren S. Henderson Wetlands Protection Act in October 1985
required that the Florida Department of Environmental Regulation (DER) adopt
specific rules regarding mitigation for dredge and fill projects. In early
June 1986 the Department issued a 28-page draft rule and is now soliciting
comments. On behalf of our clients, Biological Research Associates, Inc. (BRA)
participated in the 25 June 1986 Orlando general workshop on mitigation and
later provided written comments to DER on the proposed rule. In addition,
we have been requested by DER to present a paper in Tallahassee on technical
aspects of freshwater mitigation on 23-24 July 1986. At this time we thought
it important to: 1) inform you of the major controversies surrounding his
proposed rule; 2) indicate its probable consequences to your future projects
if adopted as proposed; and 3) solicit your comments and suggestions so that
we may better represent your interests. Copies of the lengthy draft mitigation
rule are available at our office as well as at DER.

Our analysis indicates that three general aspects of the proposed rule will
significantly impact most our clients: success criteria, mitigation ratios,
and financial responsibility requirements. Our bottom line analysis is that 1)
the rule if passed as proposed could easily increase total mitigation costs
two-to-four fold, and 2) this increased complexity in mitigation requirements
and costs is in part the result of unscrupulous consultants and/or developers
who promised but did not deliver on past dredge and fill/mitigation projects.
The resulting proposed rule, colloquially known as "Son of G-l", has these
major facets:

Success Criteria

Under the general guise of evaluating mitigation proposals (Chapter 17-12.330)
the Department will require for almost every dredge and fill permit
application:

1. A detailed description of the wetland to be affected (- reference wetland)
including information on the vegetation, hydrologic regime, soil profile,
drainage basin, ground and surface water.

2. A similar description for the wetland to be created, restored or enhanced
through mitigation as well as a monitoring plan and total cost estimate
for mitigation.

3. A baseline study (length of time not specified in the rule) to demonstrate
that the wetland to be created, enhanced or restored ultimately will be of
the same type and function as the reference wetland. Wetland


characteristics to be specifically examined include substrates, hydrologic
regime, topography, flora and fauna, detrital export and organic
accumulation, water quality benefits, effects of recreational use, and
potential invasion by exotic or nuisance species.


7792 Professional Place P. O. Box 290647 Tampa, Florida 33687 (813) 985-2408








(2)


4. If the referenced wetland area

"serves as habitat for endangered or threatened species of
flora or fauna, the department shall require that the
mitigation project shall be completed, inspected by the
department, and determined by the department to be capable of
serving as habitat for the endangered or threatened species
prior to commencement of the dredging and filling activity"
(emphasis added).

In our experience almost every forested wetland includes 3-6 plant species
listed as either endangered or threatened on the only "official" Florida
list, prepared by the U.S. Department of Agriculture (Section 581.185-187
Florida Statutes). The intent of this law was to inhibit the commercial
exploitation of native plants, not dredge and fill projects. In addition,
all Florida wetlands serve at least occasionally as habitat for the
endangered Woodstork and other wetland-dependent animal species. The
upshot of this proposed clause (Chapter 17-12.330(3)(b)1) is that almost
any DER permitting employee could delay an otherwise permittable project
upwards of several years.

The proposed success criteria for created wetlands will require among other
things the following under Chapter 17-12.340(1):

a. 90 percent of the species of plants in the reference wetland are
present in the created wetland and occur in densities which are 90
percent of those found in the reference wetland.

b. The relative proportions of plant species in the three strata defined
in Section 17-4.022 shall be 90 percent of the relative proportions
in the reference wetland.

c. 90 percent of the macroinvertebrate species which were present in the
reference wetland are present in the created wetland and occur in
densities which are 90 percent of those found in similar areas of the
reference wetland.

We point out that the majority of our current mitigation projects involve the
planting of only 3 8 specific target plant species (e.g., cypress, soft rush,
pickerelweed, arrowhead) even though natural (* reference) wetlands often
contain 60 to 80 plant species. Our monitoring results show that natural
recruitment in created wetlands typically increases diversity to 40 60
species within 2 3 years but species composition is rarely the same, hence
none of our previous projects probably would comply with the proposed plant
species composition requirements itemized above. Ironically, BRA has been
requested to present a paper to DER staff in Tallahassee on "how to design a
successful mitigation project" later this month. For various technical reasons
the macroinvertebrate clause (17-12.340(1)(c)) is even more unobtainable.
Needless to say, all of these success criteria will be expensive to implement
and monitor.





S.77









(3)


Mitigation Ratios

The proposed rule intentionally avoids addressing how many acres of wetlands
must be created, restored, or enhanced to mitigate the impact of a dredge and
fill project. The days of "1:1 mitigation-in-kind" probably are gone. As you
may be aware, in early June 1986 Victoria Tschinkel, the Secretary of DER,
issued a policy statement indicating that 2:1 mitigation should be required for
almost all projects and that under some conditions 5 or 6:1 mitigation may be
necessary to ameliorate'the impact of a proposed dredge and fill project. We
suspect that this policy will remain in effect unless specific language is
written into the rule. We solicit your suggestions.

Financial Responsibility Requirements

Eighteen pages amounting to 64% of the total draft rule deals with mechanisms
to ensure that the permitted maintains the financial responsibility and
resources to conduct the required mitigation and monitoring requirements for
the life of the permit. As proposed, only applicants whose total mitigation
costs are less than $5,000.00 would be exempt. All others would be required to
obtain financial coverage through one of seven different mechanisms (e.g.,
performance bonds, trust agreements, surety bonds, etc.). In essence, almost
all dredge and fill projects would be required to hire a lawyer in addition to
an engineer and an environmental consultant, and post a bond for 3 5 years.
While we philosophically agree that developers should be financially
responsible, the exemption criteria clearly should be raised to an acceptable
level. To date, none of our clients has failed to meet their mitigation
requirements.

To summarize, the mitigation rule as proposed will significantly increase the
cost and difficulty of obtaining dredge and fill permits from the DER.
However, it is likely that substantial changes to the proposed rule will be
negotiated within the coming months to make the rule more palatable to the
regulated industry. Your effort in this regard is appreciated. Finally,
please be aware that some form of the mitigation rule is scheduled for adoption
in December 1986. It may be in your interest to submit dredge and fill permit
applications to DER prior to this date.

If you have any questions or comments, please do not hesitate to contact me.

Sincerely,

BIOLOGICAL R EACH ASSOCIATES, INC.



J. Steve Godley
Senior Ecologist/Vi President

JSG/tvz

cc: BRA Staff





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