Title
Memorandum of Understanding with the St. Johns River Water Management District regarding Financial Assurance for Wetland Mitigation (B)
This item is a request for approval of the Memorandum of Understanding with the St. Johns River Water Management District regarding Financial Assurance for Wetland Mitigation.
Explanation
This memorandum of understanding is proposed to address, on an interim basis, the requirement that financial assurances (such as a letter of credit) for wetland mitigation for a development project be provided to both the City of Gainesville and to the St. Johns River Water Management District (the "District").
By way of background, the Land Development Regulations of the City of Gainesville regulate development activity within surface waters and wetlands. These local regulations are in addition to State law (implemented and enforced by the local water management district) which regulates development activity within surface waters and wetlands. The City regulations and State law are similar, such as when it is found by the City or the State that impacts to wetlands cannot be avoided or minimized development activity may occur within wetlands provided the impacts are offset by appropriate wetland mitigation. The wetland mitigation requirements for both City and State generally require, without limitation, monitoring for success, corrective measures, the provision of financial assurances, and a conservation easement. However, because the City and State wetland regulations are not identical, there is the potential for the City or State to require more or less mitigation than the other. But in many cases, the mitigation plan approved by the City is identical to or included within the mitigation plan required by the water management district.
The issue is that even when the mitigation plan is identical, the developer must satisfy both the City and the State requirements, which includes providing financial assurances to both the District and the City to assure financially that the mitigation activities actually occur, are monitored, are corrected (if necessary), and are ultimately successful. Although City regulations (Section 30-302.1(l)(4)b. of the LDC) allow the financial assurance to name the City and the District as joint beneficiaries or be payable jointly; the District rules (Section 12.3.7.4(b) of its Handbook) require the financial assurance to name the District as sole beneficiary or be payable solely to the District and that the original document be retained by the District.
Developers object to this duplication of regulation due to the cost to provide such financial assurances to both the District and the City.
City Code allows the City to establish an alternative arrangement in writing with respect to the designated beneficiary or payee of the financial assurance, and this MOU is intended to document such an alternative arrangement only with respect to developments for which the District approved mitigation plan is inclusive of the City's approved mitigation plan. Under the terms of this MOU, the District will hold the sole financial assurance for the mitigation activities. The two entities will notify one another of any violations or intended action, but neither will have the right to obligate the other to take enforcement action. The City will retain its ability to require corrective action or to take enforcement action; however, it will not have funds available through the financial assurance to do so. If applicable to the mitigation, the City and District will each be provided a separate conservation easement, in order to preserve their respective legal rights to enter the property and to take enforcement action.
City staff will be bringing forward revisions to the City's wetlands regulations in the coming year and anticipates dealing with these duplicative regulatory requirement issues, on a permanent basis, through such revisions. In the meantime, there are a number of development projects that would benefit from the MOU.
This draft MOU has been negotiated with District staff; but will have to be approved by the District Governing Board at its next available meeting.
Fiscal note
In the event the City decided to take compliance or enforcement action on a City approved wetland mitigation plan, the funding would not be available from a developer provided financial assurance (such as a letter of credit) and would instead have to come from city funds.
Recommendation
Recommended Motion: The City Commission: 1) approve the Memorandum of Understanding with the St. Johns River Water Management District regarding financial assurance for wetland mitigation; and 2) authorize the City Manager to execute and implement same.