Title: Commentary: The Proposed Mitigation Rule--Anon
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Permanent Link: http://ufdc.ufl.edu/WL00000650/00001
 Material Information
Title: Commentary: The Proposed Mitigation Rule--Anon
Physical Description: Book
Language: English
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Commentary: The Proposed Mitigation Rule--Anon
General Note: Box 7, Folder 1 ( Vail Conference 1987 - 1987 ), Item 43
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00000650
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.

Full Text


The proposed mitigation rule introduces a new, draconian
scheme of discretionary authority to approve, monitor, and
determine the success.of mitigation projects in the context of
dredge and fill permitting. The concept of mitigation has been
around for a long time. Until now, however, it has not had the
benefit of statutory definition nor authorization. It appears in
the Wetlands Act as Section 403.918(2)(b):

If the applicant is unable to otherwise meet the criteria
set forth in this subsection, the department, in deciding
to grant or deny a permit, shall consider measures
proposed by or acceptable to the applicant to mitigate
adverse effects which may be caused by the project. If
the applicant is unable to meet water quality standards
because existing ambient water quality does not meet
standards, the department shall consider mitigation
measures proposed by or acceptable to the applicant that
cause net improvement of the water quality in 'the
receiving body of water for those parameters which do not
meet standards. Reclamation and restoration programs
conducted pursuant to s. 211.32 may be considered as
mitigation to the extent that they restore or improve the
water quality and the tyupe, nature, and function of
biological systems present at the site prior to the
commencement of mining activities.

This statutory authority, as you can see, is still rather vague.
What appears in the draft rule, however, is not vague at all, but
creates an elaborate dual system of permitting review and
mitigation review. Presumably the mitigation review would come
into play only when the applicant proposing to dredge or fill in
waters of the state could not provide reasonable assurance that
the project will not violate water quality standards and is not
contrary to the public interest. Projects subject to the
outstanding Florida Water Rule must demonstrate that the project
is clearly in the public interest.

These broader and more subjective permitting criteria
suggest that the mitigation rule will be invoked virtually as a
matter of course. It is likely to constitute, therefore, the new
dredge and fill permitting process.


"Mitigation" is defined in the draft 17-12.310(4) as "any
action taken by a permit applicant to offset or compensate for
the adverse impacts of proposed dredging and filling by enhancing
or preserving in existing waters of the state or creating new
waters of the state." It is important to note that the wetlands
permitting test is based upon violations of water quality
standards and whether a project is contrary to the public
interest. I believe this issue, i.e., whether the mitigation
rule virtually supplants the statutory permitting criteria, will
be the subject of much debate and probably challenges to the
rule. Please also inform all of your clients, including R.J.,
that cash payment shall not be considered mitigation.

It will interest you to note the definition of."soil" as
a "natural three-dimensional body at the earth's surface which is
capable of supporting plants and has properties resulting from
the integrated effect of climate and living matter acting on
earthy parent material, as conditioned by relief over periods of
time." 17-12.310(8) just in case you didn't know what soil was.

If your mitigation proposal is going to take vAry long,
you may have to get a permit to operate the mitigation. This is
called a mitigation operation permit. I'm serious. See 17-
12.320(4). This requirement may be triggered if your mitigation
project is not "deemed to be successful" at least 60 days prior
to the expiration date of the permit. I doubt there is statutory
authority for a permitting scheme to operate a mitigation or
mitigate an operation or whatever.

The information which may be required for the evaluation
of a mitigation proposal is considerable. "Based on the size or
complexity of the mitigation proposal", further analyses
including but not limited to data on topography, soil profile,
drainage basin, groundwater and surface water conditions may be
required. From a cost standpoint, these requirements have the
potential to become a very large tail on an otherwise
inconspicuous dog.

The general concept is that if you propose to dredge and
fill anywhere, and the department is not pleased with your plans,
you will have to provide mitigation which restores or enhances
the type, nature, and function of the Wetlands, i.e., waters of
the'state, which are equivalent to or better than those waters of
the state, i.e., wetlands, alleged to be impacted by the project.
If you do not do it up front, the mitigation must represent a 2:1
replacement ratio. The Department will calculate these amounts
to, to the nearest one tenth of an acre (See s. 17-12.370(7)).

But there is good news--if you do it up front to the Department's
satisfaction on a one for one basis, you will not have to satisfy
the financial responsibility requirements of s. 17-12.400.

There is a very elaborate "financial responsibility"
portion of this rule (17-12.400). In essence it provides that
the anticipated cost of any mitigation proposal on which a
permitting decision is based shall be "pre-funded." The
mechanisms for doing so are lifted largely from the hazardous
waste financial responsibility requirements as originally drafted
by EPA. This section, as well as the conservation easement
section (17-12.380) may exceed the Department's statutory
authority; it certainly exceeds the Department's administrative
and legal capabilities with existing staff. DER lawyers know
relatively little about property law or money because they don't
have much of either. This section must be read in detail to be

The key issues in this draft rule are:

(1) Whether the scope of the mitigation process,
including the standards or criteria for evaluation,
exceed the Department's statutory authority, and

(2) Whether the financial responsibility and land
restriction requirements associated with the rule.exceed
the Department's authority or capabilities.

The implementation of this rule would make every dredge
and fill inspector a licensed real estate broker, free to
condemn, appraise, swap, or order restoration of the property of
those who dare to seek dredge and fill permits. Assuming one
participates in this process (once), the net effect may well be
to discourage efforts to satisfy the already-stringent dredge and
fill permitting criteria. This process may work much like cities
and counties who impose too stringent requirements on access to
landfills--they simply find garbage along the roadside. A final
note: the cost of implementing this system, for purposes of the
economic impact statement requirements, will be quite high,
depending upon how one evaluates the costs attributable to this
rule. I suspect that any effort to downplay this impact will
also provide a focal point for administrative challenge.


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