62-345.300: Assessment Method Overview and Guidance
62-345.400: Qualitative Characterization - Part I
62-345.500: Assessment and Scoring - Part II
62-345.600: Time Lag, Risk, and Mitigation Determination
62-345.900: Forms
PURPOSE AND EFFECT: This proposed rulemaking will amend the rule to provide clarification and guidance on establishing the reference community in Part I, when to score an assessment area as zero in Part II, and determining time lag. In addition, the mathematical formula will be modified to better address multiple impact and mitigation sites and sites with known mitigation acreage.
SUMMARY: Subsection 373.414(18), F.S., directed the Department and water management districts to develop a uniform mitigation assessment method for wetlands and other surface waters and the Department to adopt the assessment method by rule. The rule (Chapter 62-345, F.A.C.) was developed and became effective on February 2, 2004. The rule applies to water management districts and local government in addition to the Department. The proposed rule will clarify certain provisions of the rule, including guidance on establishing the reference community in Part I, when an assessment area is scored zero in Part II, and providing a clearer mathematical formula to address multiple impact and mitigation sites.
Assessment Method Overview and Guidance (62-345.300).
Chapter 62-345 was designed to assess the function of impact and mitigation areas relative to naturally occurring communities and to provide that basis of comparison in Part I. The proposed amendments are intended merely to clarify the Department’s original intent by referring to “native community type”. An additional change to this section clarifies where listed species and other site-specific information is noted.
Qualitative Characterization – Part I (62-345.400).
This section of the rule is proposed to be clarified through use of reference to “native community type” when providing frame of reference for assessment, particularly when classifying a site and identifying the anticipated functions. When the assessment area is currently an artificial system, guidance is provided to refer to the native system it most closely resembles.
Assessment and Scoring – Part II (62-345.500).
Paragraph (1)(c) is a new addition to clarify that if the activity will result in the elimination of the wetland or surface water area by converting it to upland, then all of the indicators of wetland function are scored zero under the “with impact” scenario. Similarly, a sentence is added to paragraph (2)(c) to clarify that if the community structure attribute of an upland is scored a zero due to the loss of that natural system, then the location and landscape is also scored zero.
Time Lag, Risk, and Mitigation Determination (62-345.600).
Paragraph (1)(a) is modified to provide guidance for the time lag determination by referring to the anticipated mitigation outcome, which is the scenario that is scored in Part II as “with mitigation”.
Subsection (3) has a series of changes intended to simplify and clarify the formulas, which is particularly important for those projects with multiple impacts and mitigation areas. The changes begin with a definition of a new term, Functional Gain, referring to the increase in function provided by the mitigation area. Paragraph (3)(c) is modified to state the relationship between functional gain and functional loss for single impact and mitigation areas. Paragraph (3)(d) is new and provides the mathematic relationship between functional gain(s) and functional loss(es) for projects with multiple impacts and mitigation assessment areas.
Forms (62-345.900)
The form adopted by reference in subsection (3) Mitigation Determination Formulas is modified to reflect the changes in 62-345.600(3), as described above.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: A statement of estimated regulatory cost was prepared and summarized that revisions are limited to clarification and guidance, and impose no appreciable regulatory costs.
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.
SPECIFIC AUTHORITY: 373.026(7), 373.043, 373.414(9), (18) FS.
LAW IMPLEMENTED: 373.414(18) FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE,TIME AND PLACE SHOWN BELOW(IF NOT REQUESTED, THIS HEARING WILL NOT BE HELD):
DATE AND TIME: June 22, 2007, starting at 10:00 a.m. (ET)
PLACE: Department of Environmental Protection, Bob Martinez Center, 2600 Blair Stone Road, Room 609, Tallahassee, FL
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: Mary VanTassel, (850)245-8486. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Constance Bersok, Environmental Administrator, Office of Submerged Lands and Environmental Resources, 2600 Blair Stone Road – MS 2500, Tallahassee, FL 32399-2400, by e-mail at connie.bersok@dep.state.fl.us, or by phone at (850)245-8479. (Regarding OGC No.: 06-1877)
THE FULL TEXT OF THE PROPOSED RULE IS:
62-345.300 Assessment Method Overview and Guidance.
(1) through (2) No change.
(3) The assessment method is designed to be used in any type of impact site or mitigation site in any geographic region of the state. The inherent flexibility required for such a method is accomplished in a multi-part approach that consists of the following processes:
(a) Conduct qualitative characterization of both the impact and mitigation assessment areas (Part I) that describes the assessment area, identifies its native community type and the functions provided by the area to fish and wildlife and their habitat. The purpose of Part I is to provide and establishes a framework for comparison of the assessment area to the optimal condition and location of that native community type quantitative assessment. Another purpose of this part is to note any relevant factors of the assessment area that are discovered by site inspectors, including use by listed species.
(b) through (e) No change.
(4) through (5) No change.
Specific Authority 373.026(7), 373.043, 373.414(9), (18) FS. Law Implemented 373.414(18) FS. History–New 2-2-04, Amended________.
62-345.400 Qualitative Characterization – Part I.
(1) An impact or mitigation assessment area must be described with sufficient detail to provide a frame of reference for the type of community being evaluated and to identify the functions that will be evaluated. When an assessment area is an upland proposed as mitigation, functions must be related to the benefits provided by that upland to fish and wildlife of associated wetlands or other surface waters. Information for each assessment area must be sufficient to identify the functions beneficial to fish and wildlife and their habitat that are characteristic of the assessment area’s native community type, based on currently available information, such as aerial photographs, topographic maps, geographic information system data and maps, site visits, scientific articles, journals, other professional reports, field verifications when needed, and reasonable scientific judgment. For artificial systems, such as borrow pits, ditches and canals, and for altered systems, refer to the native community type it most closely resembles. The information provided by the applicant for each assessment area must address the following, as applicable:
(a) through (d) No change.
(e) Classification of the assessment area’s native community type, considering including description of past alterations that affect classification. Classification shall be based on Florida Land Use, Cover and Form Classification System (1999) (FLUCC) codes, which is incorporated by reference herein. In addition, the applicant may further classify the assessment areas using the 26 Communities of Florida, Soils Conservation Service (February 1981), which is incorporated by reference herein; A Hydrogeomorphic Classification for Wetlands, Wetland Research Program Technical Report WRP-DE-4, Mark M. Brinson (August 1993), which is incorporated by reference herein; or other sources that, based on reasonable scientific judgment, describe the natural communities in Florida;
(f) No change.
(g) Functions performed by the assessment area’s native community type. Functions to be considered are: providing cover, substrate, and refuge; breeding, nesting, denning, and nursery areas; corridors for wildlife movement; food chain support; and natural water storage, natural flow attenuation, and water quality improvement, which enhances fish, wildlife, and listed species utilization;
(h) Anticipated wildlife utilization and type of use (feeding, breeding, nesting, resting, or denning), and applicable listing classification (threatened, endangered, or species of special concern as defined by Rules 68A-27.003, 68A-27.004, and 68A-27.005, F.A.C.). The list developed for the assessment area need not include all species which use the area, but must include all listed species in addition to those species that are characteristic of the native community type area and the functions provided by the area, considering the size and geographic location of the assessment area. Generally, wildlife surveys will not be required. The need for a wildlife survey will be determined by the likelihood that the site is used by listed species, considering site characteristics and the range and habitat needs of such species, and whether the proposed system will impact that use;
(i) through (j) No change.
Specific Authority 373.026(7), 373.043, 373.414(9), (18) FS. Law Implemented 373.414(18) FS. History–New 2-2-04, Amended________.
62-345.500 Assessment and Scoring – Part II.
(1) No change.
(a) through (b) No change.
(c) When the “with impact” outcome is upland, the “with impact” scores for each of the wetland indicators of function shall be zero (0).
(2) No change.
(a) For upland preservation, the gain in ecological value is determined by the mathematical difference between the score of the upland assessment area with the proposed preservation measure and the upland assessment area without the proposed preservation measure. When the community structure is scored as “zero”, then the location and landscape support shall also be “zero”. The resulting delta is then multiplied by the preservation adjustment factor contained in subsection 62-345.500(3), F.A.C.
(b) through (c) No change.
(3) through (7) No change.
Specific Authority 373.026(7), 373.043, 373.414(9), 373.414(18) FS. Law Implemented 373.414(18) FS. History–New 2-2-04, Amended_______.
62-345.600 Time Lag, Risk, and Mitigation Determination.
(1) Time lag shall be incorporated into the gain in ecological value of the proposed mitigation as follows:
(a) The time lag associated with mitigation means the period of time between when the functions are lost at an impact site and when the site has achieved the outcome that was scored in Part II those functions are replaced by the mitigation. In general, the time lag varies by the type and timing of mitigation in relation to the impacts. Wetland creation generally has a greater lag time to establish certain wetland functions than most enhancement activities. Forested systems typically require more time to establish characteristic structure and function than most herbaceous systems. Factors to consider when assigning lag time include biological, physical, and chemical processes associated with nutrient cycling, hydric soil development, and community development and succession. There is no time lag if the mitigation fully offsets the anticipated impacts prior to or at the time of the impact.
(b) through (d) No change.
(2) No change.
(3) The relative gain of functions provided by a mitigation assessment area must be adjusted for lag time and risk using the following formula: Relative functional gain (RFG) = Mitigation Delta (or adjusted mitigation delta for preservation)/(risk x t-factor). The loss of functions provided by impact assessment areas is determined using the following formula: Functional loss (FL) = Impact Delta x Impact Areas. When the acres of a proposed mitigation assessment area is known, the gain in functions provided by that mitigation assessment area is determined using the following formula: Functional gain (FG) = RFG x Mitigation Acres.
(a) through (b) No change.
(c) To determine the acres of one mitigation area needed to offset impacts to one assessment area when not using a bank or a regional offsite mitigation area as mitigation, divide functional loss (FL) by relative functional gain (RFG). If the acreage of proposed mitigation is known, then functional gain (FG) must be equal to or greater than the functional loss (FL). If there is more than one impact assessment area or more than one mitigation assessment area, the total functional loss and total relative functional gain is determined by summation of the functional loss and relative functional gain for each assessment area.
(d) If there are multiple impact assessment areas and/or multiple mitigation assessment areas with known acreages to offset those impacts, then the summation of the appropriate functional gains (FG) must be equal to or greater than the summation of the respective functional loss (FL).
Specific Authority 373.026(7), 373.043, 373.414(9), 373.414(18) FS. Law Implemented 373.414(18) FS. History–New 2-2-04, Amended________.
62-345.900 Forms.
(1) through (2) No change.
(3) Mitigation Determination Formulas, [Effective Date] 2-2-04.
Specific Authority 373.026(7), 373.043, 373.414(9), 373.414(18) FS. Law Implemented 373.414(18) FS. History–New 2-2-04, Amended________.