§ 72-887. Mitigation.

(a)

 Mitigation requirements.

(1)

It is presumed that development activity will have an adverse affect upon wetlands, and that permit conditions are inadequate to avoid potential adverse environmental affects. If the applicant fails to overcome this presumption then mitigation shall be required. Mitigation plans should consider the function of existing natural resources and provide comparable functions after mitigation is completed. Mitigation plans should maximize the preservation of existing natural resources. The mitigation plans shall consider the following methods, in order of priority in which they should be utilized:

a.

Avoiding the impact altogether by not taking a certain action or parts of an action;

b.

Minimizing impacts by limiting the degree or magnitude of the action or its implementation;

c.

Rectifying the impact by repairing, rehabilitating, or restoring the affected environment;

d.

Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action;

e.

Compensating for the impact by replacing or providing substitute resources or environments through creation of new wetlands, enhancement of existing wetlands or reestablishment of wetlands which are no longer functioning due to significant attention [alteration] in the past.

(2)

The purpose of mitigation is to compensate for unavoidable adverse impacts by replacing or providing substitute resources or environments through the creation of new wetlands, enhancement of existing wetlands, or reestablishment of wetlands which are no longer functioning due to significant alteration in the past. Where all or part of a wetland is destroyed or to be destroyed or substantially altered by development, a proposed mitigation plan shall include at least:

a.

A description of the wetland and buffer to be created or restored, which shall include, but not limited to, the type and functions of the wetland, the proposed mitigation ratios, species present or to be planted, plant density, anticipated source of plants, soils and hydrologic regime;

b.

A plan for monitoring the success of a created or restored wetland;

c.

A detailed plan describing the monitoring and methods of control and maintenance of exotic or nuisance vegetation;

d.

Monitoring and replacement to assure a survival rate of 80 percent wetland vegetation for a minimum of three years;

e.

An upland habitat as an adjacent buffer on mitigated sites, as provided in section 72-886.

(3)

An acceptable mitigation plan shall be reasonably and technically feasible. Mitigation through restoration of other degraded wetlands is preferred over wetland creation.

(4)

Mitigation should take place on-site or in close proximity thereto or in areas so designated as provided in subsection (d) of this section.

(5)

An applicant who carries out a compensatory mitigation plan shall grant a conservation easement on the newly created or restored wetland and buffer to protect it from future development. A legal mechanism other than a conservation easement may be deemed appropriate on a case-by-case basis to carry out the purpose of the subsection.

(6)

A mitigation plan approved by a federal, state or regional agency shall be acceptable to the EMD; provided however, that the approved mitigation plan does not result in the loss of function. If no such mitigation plan is required by the approved permit from the federal, state or regional agency, or if the approved plan results in loss of function, then the EMD may require a mitigation plan in compliance with this section.

(7)

A mitigation plan should be designed to ensure that the wetlands provides minimal mosquito larval habitat and does not eliminate habitat for predatory fish.

(8)

Any wetlands which have been altered in a manner which does not comply with this division and no wetland alteration permit obtained shall be restored and the mitigation requirements as provided in this division shall apply.

(b)

Mitigation ratios. In determining the replacement acreage ratios for restored or created wetlands, the EMD shall consider, but not be limited to the following criteria:

(1)

The length of time that can be expected to lapse before the functions of the impacted wetlands functions have been restored or offset.

(2)

Any special designation or classification of the water body, including Outstanding Florida Waters, aquatic preserves or class II.

(3)

The type of wetland to be created and the likelihood of successfully creating that type of wetland.

(4)

Whether or not the affected wetland are [is] functioning as natural, healthy wetland of that type.

(5)

Whether the wetland is unique for that watershed.

(6)

The presence or absence of exotic or nuisance plants within the wetland and adverse effects those plants have on the wetland's beneficial functions.

(7)

Whether the proposed project eliminates or changes the wetland from one type to another.

(8)

The amount and quality of upland habitat preserved as conservation areas or buffer.

(9)

Whether the applicant chooses to allocate funds to the County of Volusia Environmental Improvement Trust Fund as provided in subsection (c), herein.

Except as provided in subsection (a)(6), the mitigation ratio shall include replacement of the same type of wetland of at least a one-to-one ratio unless the value of the wetland based on its functional value is determined to warrant a greater or lesser ratio. There should be like-kind replacement, i.e., salt water system for saltwater system, freshwater for freshwater where practicable. The minimum mitigation ratio for wetlands which have been harvested for timber within six months prior to submittal for a development order review shall be a minimum of a one-to-one ratio of created or restored wetlands to the adversely impacted wetland. The minimum mitigation ratio for wetlands which have been developed from agricultural uses within six months prior to submittal for a development order review shall be a minimum of one-to-one of created or restored wetlands to the adversely impacted wetlands.

(c)

Environmental improvement trust fund.

(1)

If the wetlands alteration permit application is not processed concurrently with development order review and a successful mitigation is not likely to offset unavoidable impacts, then the proposed development shall be assessed a mitigation fee.

(2)

All mitigation fees shall be deposited in a fund to be known as the County of Volusia Environmental Improvement Trust Fund. The purpose of the fund is to purchase, improve, create, restore, manage and replace natural habitat within the county. The fund shall be used for these purposes. The fund may be utilized in concert with other funding sources for the purposes required under this subsection. The fees may be used for the creation or restoration of any wetland type.

(3)

The environmental improvement trust fund shall be expended as provided in subsection (d), below.

(4)

Until a resolution of the county council approving the mitigation fees is adopted as provided herein, this section shall not be operative.

(d)

Off-site mitigation.

(1)

Volusia County shall designate and attempt to purchase, or otherwise acquire, lands within each watershed and/or subbasin, which are suitable for the creation, acquisition, restoration or preservation of wetlands or wetland habitat systems, including adjacent upland habitat. The purpose of such designation is to provide areas suitable for the off-site mitigation of the impacts of wetland alteration.

(2)

For those projects which require off-site mitigation, the mitigation shall be performed within the watershed or subbasin of those lands described in this subsection.

(3)

The off-site mitigation areas may be developed with the intention of utilizing the areas for passive and/or active recreational parks, provided however, the wetlands beneficial functions are not adversely impacted.

(Ord. No. 89-52, § I, 12-7-89; Ord. No. 2008-25, § III, 12-4-08)