40C-1.1101: Amendments to and Releases of Regulatory Conservation Easements.
PURPOSE AND EFFECT: The St. Johns River Water Management District (District) proposes to develop rules to address requests to the District to amend or release a conservation easement previously conveyed to the District for mitigation or in compliance with other regulatory requirements. The District will develop categories (and corresponding criteria) for evaluating requests for releases or amendments of regulatory conservation easements, such as (1) on-site boundary adjustments, (2) regulatory conservation easements not needed to meet regulatory requirements, (3) public projects, (4) other projects, and (5) legal errors.
SUBJECT AREA TO BE ADDRESSED: The proposed rule creates criteria in Chapter 40C-1, F.A.C., that the District will use to decide whether to agree to amend or release a conservation easement conveyed to it for mitigation or in compliance with other regulatory requirements.
SPECIFIC AUTHORITY: 373.044, 373.113 FS.
LAW IMPLEMENTED: 373.096 FS.
A RULE DEVELOPMENT WORKSHOP WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: August 14, 2008, 10:00 a.m. – 12:00 Noon
PLACE: St. Johns River Water Management District’s Jacksonville Service Center, Cypress Room, 7775 Baymeadows Way, Suite 102, Jacksonville, FL 32256
DATE AND TIME: August 21, 2008, 10:00 a.m. – 12:00 Noon
PLACE: St. Johns River Water Management District’s Altamonte Springs Service Center, Econ Room, 975 Keller Road, Altamonte Springs, FL 32714
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: Sandy Bertram, Asst. District Clerk, (386)329-4127. 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 DEVELOPMENT AND A COPY OF THE PRELIMINARY DRAFT, IF AVAILABLE, IS: Norma Messer, Rules Coordinator, Office of General Counsel, St. Johns River Water Management District, 4049 Reid Street, Palatka, Florida 32177-2529, (386)329-4459, Suncom 860-4459, email nmesser@sjrwmd.com
THE PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT IS:
PART XI REGULATORY CONSERVATION EASEMENTS
40C-1.1101 Amendments to and Releases of Regulatory Conservation Easements.
(1) This rule establishes the criteria that the District will use to decide whether to agree to amend or release a conservation easement conveyed to it for mitigation or in compliance with other regulatory requirements (“regulatory conservation easement”). For the District to agree to release or amend a regulatory conservation easement, the request for release or amendment must satisfy the requirements of any one of the following categories:
(a) On-site Boundary Adjustments.
1. The on-site acreage of both uplands and wetlands encumbered by conservation easement remains the same or greater; and
2. The ecological value of the final conservation easement(s) is equal to or greater than the original conservation easement.
3. On-site acreage includes only areas within the boundaries of the construction permit that required the conservation easement or the boundaries of a valid conceptual permit.
(b) Conservation Easements not needed to meet Regulatory Requirements.
1. The conservation easement was not used as mitigation for permitted impacts or otherwise to meet regulatory requirements due to the permittee not implementing the surface water management system and abandoning the permit in whole or in part for those impacts; or
2. The conservation easement encumbers an area where the mitigation has failed to meet permit conditions, despite all reasonably prudent measures being implemented to correct problems with the mitigation, and the permittee has obtained approval for alternative mitigation to offset the impacts and has implemented the alternative mitigation; or
3. The conservation easement was recorded and the permittee has not commenced construction under the permit that required the conservation easement and has obtained a permit modification approving different mitigation. In this instance, the District will release or amend the conservation easement consistent with the permit modification.
(c) Public Projects. For public projects proposed, or required to be implemented, by an entity with the power of eminent domain to condemn the conservation easement, the District will negotiate for a voluntary release of the conservation easement under the following terms and conditions:
1. The entity making the request must provide an analysis that demonstrates the proposed public project cannot practicably be located in a manner that will avoid the conservation easement.
2. To the greatest extent practicable, the proposed public project must be located within the conservation easement area:
a. Adjacent to or within existing utility rights-of-way, along the boundary of the conservation easement area, or adjacent to or within existing firelines or roadways;
b. To avoid wetlands or uplands that are used by listed wildlife species as defined in subsection 40C-4.021(20), F.A.C.;
c. To avoid a plant community that has been classified as three (3) or lower in the Florida Natural Areas Inventory; and
d. To minimize impacts to wetlands and other surface waters.
3. In exchange for the release, the entity making the request must provide the District with a conservation easement having comparable terms over other lands within the same drainage basin which have equivalent ecological and monetary value to the area being released.
a. To establish the relative ecological values of the two parcels, the District will determine the reduction in mitigation value of the existing conservation easement that would occur if the request were approved, and the mitigation value of the land area proposed for exchange, using the Uniform Mitigation Assessment Method (UMAM) in Chapter 62-345, F.A.C.
b. To establish monetary values, the District will obtain appraisals for the parcels to be exchanged and compare the value of the conservation easements on the two parcels. The applicant will pay the District for the cost of the appraisals and all associated costs. The cost of measures taken to reduce impacts shall be considered as part of the value in the exchange.
c. The District will not accept an exchange parcel which must be enhanced or otherwise modified to provide equivalent ecological value to the conservation easement being released; and
d. For conservation easements that also served as mitigation for permits issued by the U.S. Army Corps of Engineers under section 404 of the Clean Water Act or section 10 of the Rivers and Harbors Act, the District will provide notice and an opportunity to comment or object to the release to Jacksonville District, U.S. Army Corps of Engineers. The District will consider any comments or objections from the Corps of Engineers when making the final decision to release such a conservation easement.
(d) Other Projects.
1. When the District is subject to, and determines it may not prevail in, a non-frivolous suit for a way of necessity, the District will apply the same criteria as stated in the category entitled public projects to negotiate a release.
2. For requests to release less than 1000 square feet of wetlands and/or less than 2,500 square feet of uplands, the District will release the conservation easement in exchange for credits from a mitigation bank with an equivalent mitigation value, but no less than 0.01 credits, or participation in a government sponsored regional off-site mitigation area (ROMA), located within the same drainage basin as the area to be released from the conservation easement. When the District determines that a conservation easement was originally intended to prevent direct impacts or secondary impacts associated with docks, piers, boardwalks, or bulkheads, the District will agree to amend the easement to allow for specific activities other than docks, piers, boardwalks and bulkheads, but will not release the conservation easement.
3. For requests that do not qualify under any other provision in this rule, the District will consider proposals to exchange the conservation easement for a parcel shown on the District's Land Acquisition map as a potential acquisition and that meets the following requirements:
a. The land interest being provided as compensation must be within the same drainage basin and must have equivalent or greater monetary value and substantially greater ecological value that the area being released. To establish monetary values, the District will obtain appraisals for the parcels to be exchanged and compare the value of the conservation easements on the two parcels. The applicant will pay the District for the cost of the appraisal and all associated costs. To establish the relative ecological values of the two parcels, the District will determine the reduction in mitigation value of the existing conservation easement that would occur if the request were approved, and the mitigation value of the land area proposed for exchange, using the Uniform Mitigation Assessment Method (UMAM) in Chapter 62-345, F.A.C.
b. Any land interest provided to the District as compensation for the release of the conservation easement can not be used as mitigation for regulated wetland impacts other than the original impacts being mitigated by the conservation easement to be released.
c. The proposed land interest exchange would need to meet existing District requirements for land acquisition and management. The District land acquisition and management staff will review the proposed exchange to determine whether the land being offered can be managed to maintain the water resources values of the land.
d. The District will provide the Corps of Engineers with notice and an opportunity for comment prior to making a decision to release any conservation easement that also served as mitigation for a Corps permit. Any comment or objection by the Corps will be considered when the District makes the final decision regarding the release.
(e) Legal Errors. The District will agree to the release or amendment of a conservation easement when a release or amendment is necessary to correct legal errors or to conform the easement with the requirements of applicable permit conditions. Examples of such errors include: where the easement encumbers an entire subdivision rather than only those areas required to be encumbered by District permit; the legal description of the recorded conservation easement is legally incorrect; the conservation was conveyed by an entity that did not have sufficient legal interest; or the language of the conservation easement is inconsistent with the permit that by condition requires the easement to include certain provisions or specifically allows for certain activities.
(2) Notice.
(a) Except as otherwise provided in this section, for any release of conservation easement for a parcel greater than 1000 square feet, the person requesting the release must provide the District with the names and addresses of all persons who own property abutting the conservation easement area proposed to be released or amended. In addition, the District shall provide notice to all persons who were “interested persons” regarding the permitting of the project which resulted in the conservation easement. An “interested person” is a person, other than the applicant, that requested notice of agency action regarding a specific permit application. The District shall provide notice by U. S. Mail, or e-mail when an e-mail address is available and provide a two-week comment period before taking action.
(b) However, even if a request for release of conservation easement exceeds 1000 square feet, notice of receipt of the request will not be given in instances where (1) the conservation easement was not used as mitigation for permitted impacts due to the permittee not implementing any of the impacts and abandoning the permit for those impacts; (2) the mitigation has failed to meet permit conditions, despite all reasonably prudent measures being implemented to correct problems with the mitigation and the permittee has obtained approval for alternative mitigation to offset the impacts and has implemented the alternative mitigation; or (3) the release is necessary to correct legal errors. Notice will be given if the request is based on a partial abandonment of the permit.
Specific Authority 373.044, 373.113 FS. Law Implemented 373.096 FS. History–New________.