40C-1.1101: Amendments to and Releases of Conservation Easements.
PURPOSE AND EFFECT: The St. Johns River Water Management District (District) proposes a rule amendment that would allow the District to release or amend certain conservation easements that it could not release or amend under the current rule.
SUMMARY: District Rule 40C-1.1101, F.A.C., adopted in 2010, authorizes the release or amendment of certain conservation easements that have been granted to the District in perpetuity. Release or amendment requests that fall within the following categories are authorized under the existing rule: (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; or (6) legal errors. The District proposes a rule amendment that would add an additional category of conservation easements that it could release or amend.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:
The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the agency.
The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein:
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
RULEMAKING AUTHORITY: 373.044, 373.088, 373.113 FS.
LAW IMPLEMENTED: 373.088, 373.089, 373.096, 373.139(2) FS.
A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: Following the regularly scheduled Governing Board Meeting on August 14, 2012, which begins immediately following the Regulatory Committee Meeting that begins at 10:00 a.m.
PLACE: St. Johns River Water Management District Headquarters, Executive Building, 4049 Reid Street, Palatka, Florida 32177
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Wendy Gaylord, Rules Coordinator, Office of General Counsel, St. Johns River Water Management District, 4049 Reid Street, Palatka, Florida 32177-2529, (386)326-3026, email wgaylord@sjrwmd.com
THE FULL TEXT OF THE PROPOSED RULE IS:
40C-1.1101 Amendments to and Releases of Conservation Easements.
(1) This section establishes the terms and conditions under which the District shall agree to amend or release all or part of a conservation easement conveyed to it, pursuant to Section 704.06, F.S., solely for mitigation or in compliance with other regulatory requirements of the District or another governmental entity. It does not apply to conservation easements that were acquired by the District partly through purchase and partly through a regulatory program. The District’s decision to release or amend a conservation easement is a proprietary decision and does not result in any waiver of regulatory requirements. Property owners shall be responsible for obtaining all necessary permits for their construction activities, including any dredging or filling of wetlands. A request for the release or amendment of a conservation easement shall include a copy of the recorded conservation easement; a copy of any conservation easement over other property offered in exchange for the requested release or amendment; and a map showing the location of the recorded conservation easement and any conservation easement offered in exchange. For the District to agree to release or amend a conservation easement, the request for release or amendment shall satisfy the conditions of any one of the following seven six categories and the general condition in paragraph 40C-1.1101(1)(h)(g), F.A.C.:
(a) through (f) No change.
(g) Other Requests. For the purpose of this paragraph, “other requests” are requests for release or amendment of conservation easements that do not involve public projects as defined in paragraph 40C-1.1101(1)(c), F.A.C., or requests for release or amendment where the conservation easement that is the subject of the request is located on a single-family lot or within a permitted residential development. The District shall release or amend a conservation easement under this “other requests” category, under the following terms and conditions:
1. The entity making the request must provide the District with a conservation easement having substantially similar terms, over other lands within the same drainage basin, with the new conservation easement having equivalent or greater ecological and monetary value when compared to the conservation easement to be released or amended.
a. To establish ecological values, the District shall use the Uniform Mitigation Assessment Method (UMAM) in Chapter 62-345, F.A.C. For the conservation easement that is proposed for release or amendment, the District shall determine the reduction in ecological value that would occur if the request were approved, based on the ecological value accorded to the conservation easement at the time of permit issuance, or the conservation easement’s current ecological value, whichever is greater. For the conservation easement proposed in exchange for the release or amendment, the District shall determine the increase in ecological value that would be attributed to the new conservation easement.
b. To establish monetary values, the District shall obtain an appraisal for the conservation easement area to be released or amended and for the conservation easement offered in exchange for the release or amendment. The appraisal must be in accordance with subsection 40C-1.1101(3), F.A.C., below.
2. In addition to encumbering the lands needed to establish equivalent ecological value pursuant to subparagraph 1.a. of this paragraph, the conservation easement proposed in exchange for the release or amendment shall also encumber an additional contiguous acreage of both uplands and wetlands that is at least equal to the acreage of both uplands and wetlands to be released or amended and that provides ecological value at least equivalent to the current ecological value of both the uplands and wetlands to be released or amended. The District shall not accept additional contiguous acreage that must be enhanced or otherwise modified to provide equivalent ecological value to the current ecological value of the uplands and wetlands to be released or amended.
3. The release or amendment shall not be approved if it would adversely affect the ecological value of other conservation lands or interests in lands.
4. The decision to release or amend a conservation easement shall include consideration of the effect, if any, on the reasonable expectation of persons who own property abutting the conservation easement area that the area proposed to be released or amended would be held in perpetuity as a conservation area.
(h)(g) No change.
(2) No change.
(3) Appraisals.
(a) through (c) No change.
(d) All appraisals shall be prepared by appraisers certified under Chapter 475, F.S.
1. Appraisals for Public Projects and Other Requests.
a. The appraisal assignment shall be to provide an opinion of market value of the District conservation easement over the release or amendment area and of the conservation easement offered in exchange. The market value of the conservation easement over the release or amendment area shall be based on the difference between the full fee simple valuation after the release or amendment and the value of the interests remaining with the person seeking the release before the release or amendment. The market value of the conservation easement over the area offered in exchange shall be based on the difference between the value of the full fee simple valuation before the conveyance of a conservation easement and the value of the interest remaining with the grantor of the easement after conveyance of the conservation easement.
2. Single Family Lots.
a. The appraisal assignment shall be to provide an opinion of market value of the District conservation easement over the release or amendment area. The market value of the conservation easement over the release or amendment area shall be based on the difference between the value of the single-family lot after the conservation easement is released or amended and the value of the single-family lot without the conservation easement release or amendment.
(e) All appraisals shall be prepared by an appraiser selected and retained by the District.
(f) The person requesting the release or amendment shall pay the District for the cost of any appraisal and payment for the cost of the appraisal(s) shall be made before the District proceeds with the appraisal(s).
Rulemaking Authority 373.044, 373.113, 373.088 FS. Law Implemented 373.096, 373.089, 373.139(2), 373.088 FS. History– New 1-12-10, Amended_________.