7371823, 40C-1.1101 - Florida Administrative Rules, Law, Code, Register

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Florida Department of State and Division of Library and Information Services

Notice: 7371823

Notice of Proposed Rule

Department:

WATER MANAGEMENT DISTRICTS

Division:

St. Johns River Water Management District

Chapter:

ORGANIZATION AND PROCEDURE

Overview

RULE:

40C-1.1101

Amendments to and Releases of Conservation Easements (Repealed)

PURPOSE:

The purpose and effect of the proposed rule is to establish the terms and conditions under which the District will agree to amend or release a conservation easement conveyed to it, pursuant to Section 704.06, Florida Statutes, solely for mitigation or in compliance with other regulatory requirements of the District or another governmental entity.

SUMMARY:

The proposed rule would be used to address requests to the District to amend or release a conservation easement previously conveyed to the District solely for mitigation or in compliance with other regulatory requirements of the District or another governmental entity. Typically, such easements are voluntarily proposed as mitigation or to meet other regulatory requirements during the permitting process for projects requiring an environmental resource permit (ERP) under Part IV of Chapter 373, Florida Statutes, and then recorded as a condition of an ERP. In addition, the District’s rule for mitigation banks requires an applicant for a mitigation bank permit to encumber the bank’s property by conservation easement or to convey the property to the District. The District may also receive conservation easements for compliance with another entity’s regulatory program, such as the federal wetland permitting program implemented by the U.S. Army Corps of Engineers.
The proposed rule establishes the following six categories, along with corresponding criteria for each category, that the District will use to evaluate requests for releases or amendments of these conservation easements: (1) on-site adjustments; (2) regulatory conservation easements not needed to meet regulatory requirements; (3) public projects; (4) way of necessity claims; (5) single-family lots; and (6) legal errors. For the District to agree to release or amend such a conservation easement, a request for release or amendment must satisfy the conditions of any one of these categories.
To obtain a release or amendment under the “On-site Adjustment” category, the person requesting the release or amendment must demonstrate that the on-site acreage of uplands and wetlands preserved by conservation easement after the release or amendment will remain the same or be greater than that before the release or amendment. In addition, it must be shown that the ecological value of the on-site acreage of uplands and wetlands preserved by conservation easement after the release or amendment will be at least equivalent to the greater of (1) the ecological value accorded at the time of permit issuance to the on-site acreage of uplands and wetlands preserved by conservation easement or (2) the current ecological value of the on-site acreage preserved by conservation easement. These criteria can be met by placing appropriate additional on-site areas under conservation easement. On-site acreage includes only areas within the boundaries of a construction permit or the boundaries of a valid conceptual permit. To obtain a release or amendment under the category “Conservation Easements not needed to meet Regulatory Requirements,” the person making the request must demonstrate the existence of one of four factual scenarios set forth in the proposed rule. The third category, “Public Projects,” describes the terms under which the District would voluntarily negotiate the release or amendment of a conservation easement for a public project proposed, contracted or implemented on behalf of, by an entity with the power of eminent domain. This category represents an alternative to eminent domain proceedings. The fourth category, “Single-Family Lots” addresses requests for release or amendment by single-family lot owners, while the fifth category, “Way of Necessity Claims,” addresses requests when the District is subject to, and determines it will not prevail in, a lawsuit for way of necessity under Chapter 704, Florida Statutes. Under the sixth category, “Legal Errors,” the District would release or amend conservation easements when necessary to correct legal errors or to conform the easement with the requirements of applicable permit conditions.
The proposed rule requires the District to give notice of receipt of a request for release or amendment, except in certain limited circumstances stated in the rule, to persons who own property abutting the conservation easement area proposed to be released or amended and to interested persons, as defined by the rule. Such persons will have 14 days to comment on a request for release or amendment of conservation easement before the District acts on the request. Finally, the rule identifies the requirements for performing appraisals needed to establish equivalent monetary value under the rule which are relevant to the third, fourth, and fifth categories summarized above.

RULEMAKING AUTHORITY:

373.044, 373.113, 373.088 FS.

LAW:

373.096, 373.089, 373.139(2), 373.088 FS.

PRINT PUBLISH DATE:

7/17/2009 Vol. 35/28

COMMENTS:

From 7/17/2009 To 8/7/2009 (21 Days)
The public comment period for this notice has already expired.

REFERENCE MATERIALS:

No reference(s).

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