40C-1.1101: Amendments to and Releases of Regulatory Conservation Easements.
PURPOSE AND EFFECT: 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.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
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: 373.044, 373.113, 373.088 FS.
LAW IMPLEMENTED: 373.096, 373.089, 373.139(2), 373.088 FS.
A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: October 13, 2009, Following the regularly scheduled Governing Board meeting which begins at 1:00 p.m.
PLACE: St. Johns River Water Management District Headquarters, 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:
PART XI CONSERVATION EASEMENTS
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, Florida Statutes, 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 six categories and the general condition in paragraph 40C-1.1101(1)(g), F.A.C.:
(a) On-site Adjustments. The District shall release or amend a conservation easement under this category when:
1. The on-site acreage of both uplands and wetlands encumbered by conservation easement after the release or amendment shall remain the same or be greater than before the release or amendment of conservation easement; and
2. The ecological value of the on-site acreage of uplands and wetlands encumbered by conservation easement after the release or amendment shall be at least equivalent to the greater of:
a. The ecological value accorded at the time of permit issuance to the on-site acreage of uplands and wetlands preserved by conservation easement; or
b. The current ecological value of the on-site acreage of uplands and wetlands preserved by conservation easement.
3. The District shall use the Uniform Mitigation Assessment Method (UMAM) in Chapter 62-345, F.A.C., to establish ecological values.
4. 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. The District shall release or amend a conservation easement under this category when:
1. The conservation easement was not used as mitigation for permitted impacts or otherwise to meet regulatory requirements, due to the permittee not implementing all or part of the permitted surface water management system and abandoning the permit 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 a permit modification for alternative mitigation to offset the impacts and has implemented the alternative mitigation; or
3. The permittee has not commenced construction under the permit that required the conservation easement and has obtained a permit modification approving different mitigation, provided that the release or amendment shall not adversely affect the ecological value of other lands or interests in lands, owned by the District; or
4. For a mitigation bank or a permitted bank phase, no bank credits have been sold or used from the bank or permitted phase, as applicable; and the relevant permit for the mitigation bank or permitted phase has been surrendered to the District.
(c) Public Projects. For the purpose of this paragraph, public projects are projects proposed or contracted by, or implemented on behalf of, an entity with the power of eminent domain to condemn the conservation easement, and may include linear facilities such as electric transmission and distribution facilities, pipeline transmission and distribution facilities, or public transportation corridors. For public projects, the District shall negotiate for a voluntary release or amendment of the conservation easement under the following terms and conditions:
1. The entity making the request shall provide an analysis that demonstrates the public project cannot practicably be located in a manner that will avoid the conservation easement. If the analysis demonstrates that avoiding the easement is not technically capable of being done, is not economically viable, or will adversely affect public safety through the endangerment of lives or property, location of the project in a manner that will avoid the easement shall not be considered “practicable” under paragraph 40C-1.1101(1)(c), F.A.C.
2. If the public project cannot be located to avoid the conservation easement pursuant to subparagraph 40C-1.1101(1)(c)1., F.A.C., the public project, to the extent practicable, shall be located within the conservation easement as follows:
a. Adjacent to or within existing utility rights-of-way, along the boundary of the conservation easement, or adjacent to or within existing firelines or roadways;
b. To avoid wetlands or uplands that are used by the bald eagle (Haliaeetus leucaphalus) or listed wildlife species as defined in subsection 40C-4.021(20), F.A.C.;
c. To avoid a plant community that has been classified by a state rank of three (3) or lower in the document titled “FNAI [Florida Natural Areas Inventory] – Element Tracking Summary” (October 1, 2008); and
d. To minimize impacts to wetlands and other surface waters.
3. In exchange for the release or amendment, 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 that have equivalent or greater ecological and monetary value to the area being released or amended. Alternatively, for public projects that are expansions of existing facilities, but are not extensions of linear facilities, the entity making the request may, in exchange for the release or amendment, provide credits from a mitigation bank with equivalent or greater ecological and monetary value, but no less than 0.01 credits, or participate in a regional off-site mitigation area (ROMA) sponsored by the Department or the District with equivalent or greater ecological and monetary value, located within the same drainage basin as the conservation easement being released or amended.
a. To establish relative ecological values, the District shall use the Uniform Mitigation Assessment Method (UMAM) in Chapter 62-345, F.A.C. For the conservation easement to be released or amended, 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 and a review appraisal for the conservation easement to be released or amended in accordance with subsection 40C-1.1101(3), F.A.C. If a conservation easement is proposed in exchange for the release or amendment, the District shall obtain an appraisal and review appraisal for the conservation easement offered in exchange and shall compare the values of the two conservation easements. The cost of measures taken to avoid and minimize impacts under subparagraphs 40C-1.1101(1)(c)1. and 2., F.A.C., shall be considered as part of the value in the exchange. If mitigation bank credits or participation in a ROMA are offered in exchange for the release or amendment of conservation easement, the person requesting the release or amendment must provide the District with a written quote from a mitigation bank for the mitigation credits needed to provide equivalent or greater monetary and ecological value or an analysis from the government entity implementing the ROMA of what portion of the ROMA shall be attributed to the financial contribution proposed.
(d) Way of Necessity Claim. When the District is subject to, and determines it may not prevail in, a lawsuit for a way of necessity, the District shall apply the same criteria as stated in subparagraphs 40C-1.1101(1)(c)1. through 3., F.A.C., except that the term “public project” shall be replaced with the term “way of necessity.”
(e) Single-Family Lots. The District shall release up to 6,000 square feet from a conservation easement located on a single-family lot in exchange for credits from a mitigation bank or participation in a government-sponsored regional off-site mitigation area (ROMA), located in the same drainage basin as the conservation easement to be released or amended when:
1. The mitigation bank credits or ROMA participation have equivalent or greater monetary and ecological value to the conservation easement being released or amended.
a. The District shall develop an opinion of monetary value based upon the best available information for the conservation easement area to be released or amended. If this opinion of value is not acceptable to the person requesting the release or amendment, the District shall obtain an appraisal and review appraisal of the conservation easement area to be released or amended in accordance with subsection 40C-1.1103(3), F.A.C.
b. The person requesting the release or amendment must provide the District with a written quote from a mitigation bank for the mitigation credits needed to provide equivalent or greater monetary and ecological value or an analysis from the governmental entity implementing the ROMA of what portion of the ROMA shall be attributed to the financial contribution proposed.
c. The District shall perform an ecological assessment of the conservation easement to be released or amended and the mitigation bank credits or ROMA participation being offered in exchange in accordance with the Unified Mitigation Assessment Method (UMAM) in Chapter 62-345, F.A.C. For the conservation easement to be released or amended, 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.
2. The District shall release the minimum area of conservation easement needed for the lot owner to have a buildable area of up to 6,000 square feet on the lot, where buildable area means the portion of lot available for a residence and other improvements, excluding any setback areas required by local governments.
3. When the District determines by review of the permit file that the conservation easement was intended to prevent direct impacts or secondary impacts associated with docks, piers, boardwalks, bulkheads or mangrove trimming, the District shall amend the easement to allow activities other than docks, piers, boardwalks, bulkheads and mangrove trimming, but shall not release the conservation easement.
4. The District shall only release or amend a conservation easement under this paragraph to individuals or trusts that are the owners of a single family lot and such individuals or trusts may only request such release or amendment for one residential lot.
5. No releases or amendments under this paragraph shall be approved for lands that were subdivided after the conservation easement to be amended or released was recorded.
(f) Legal Errors. The District shall agree to release or amend a conservation easement when a release or amendment is necessary to correct legal errors or to conform the conservation 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 easement 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.
(g) General Condition. The District shall not accept a conservation easement over an exchange parcel that must be enhanced or otherwise modified to provide equivalent ecological value to the conservation easement being released or amended.
(2) Notice.
(a) Except as otherwise provided in this subsection, for any release of conservation easement greater than 1,000 square feet or amendment affecting more than 1,000 square feet of the conservation easement, the person requesting the release or amendment 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 permit that caused the conservation easement to be conveyed to the District. An “interested person” is a person, other than the permit applicant, that requested notice of agency action regarding the 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 14-day comment period from the date of the notice before taking action.
(b) Notwithstanding the provisions in paragraph 40C-1.1101(2)(a), F.A.C., notice shall not be given if: (1) the conservation easement was not used as mitigation for permitted impacts due to the permittee not implementing any of the permitted surface water management system and completely abandoning the permit; or (2) the release or amendment will be made pursuant to subparagraphs 40C-1.1101(1)(b)2., 40C-1.1101(1)(b)3., 40C-1.1101(1)(b)4., 40C-1.1101(1)(e), or 40C-1.1101(1)(f), F.A.C.;
(c) Before releasing any easement in exchange for mitigation bank credits or ROMA participation pursuant to paragraphs 40C-1.1101(1)(c), (d) or (e), F.A.C., the District shall publish a notice of intention to sell in accordance with subsection 373.089(3), F.S.
(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 shall provide notice and an opportunity to comment or object to the release or amendment to Jacksonville District, U.S. Army Corps of Engineers. The District shall consider any comments or objections from the U.S. Army Corps of Engineers when making the final decision to release or amend such a conservation easement.
(3) Appraisals.
(a) For the District to proceed with an appraisal, the person requesting a release or amendment shall provide a title report for the property to be encumbered by conservation easement in exchange for a release or amendment to the District. The title report shall include an adequate legal description of the property, and shall contain sufficient information to inform the District and the appraiser of the status of ownership, encumbrances, exceptions, and reservations on the property.
(b) If mitigation bank credits or participation in a ROMA are being proposed in exchange for the release or amendment, only an appraisal of the area to be released or amended is required.
(c) Except as otherwise provided in sub-subparagraph 40C-1.1101(1)(e)1.a., F.A.C., one appraisal and a review appraisal shall be prepared for each parcel to be released or amended and for each parcel offered in exchange for the release or amendment in order to establish monetary value.
(d) All appraisals and review appraisals shall be prepared in accordance with the 2008-2009 edition of the Uniform Standards of Professional Appraisal Practice developed by the Appraisal Foundation (“USPAP”).
(e) All appraisals and review 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 any review appraisal, and payment for the cost of the appraisal and review appraisal shall be made before the District proceeds with the appraisal.
Rulemaking Authority 373.044, 373.113, 373.088 FS. Law Implemented 373.096, 373.089, 373.139(2), 373.088 FS. History– New_________.