Florida Senate - 2024                                    SB 1646
       
       
        
       By Senator DiCeglie
       
       
       
       
       
       18-01256-24                                           20241646__
    1                        A bill to be entitled                      
    2         An act relating to mitigation credits; reordering and
    3         amending s. 373.403, F.S.; defining the term
    4         “proximity factor”; amending s. 373.4136, F.S.;
    5         revising the list of projects eligible to use
    6         mitigation banks; requiring the Department of
    7         Environmental Protection and water management
    8         districts to authorize the use of mitigation credits
    9         within surrounding basins; specifying the
   10         circumstances under which credits may be deemed
   11         unavailable in a basin; specifying factors the
   12         department and water management districts must
   13         consider when awarding mitigation credits; providing
   14         requirements for the calculation of additional credits
   15         necessary to use mitigation credits from outside a
   16         project area basin; providing construction; requiring
   17         the department to adopt rules; providing requirements
   18         for such rules; amending ss. 330.41, 373.414, and
   19         373.461, F.S.; conforming cross-references; providing
   20         an effective date.
   21          
   22  Be It Enacted by the Legislature of the State of Florida:
   23  
   24         Section 1. Section 373.403, Florida Statutes, is reordered
   25  and amended to read:
   26         373.403 Definitions.—When appearing in this part or in any
   27  rule, regulation, or order adopted pursuant thereto, the
   28  following terms mean:
   29         (4)(1) “Dam” means any artificial or natural barrier, with
   30  appurtenant works, raised to obstruct or impound, or which does
   31  obstruct or impound, any of the surface waters of the state.
   32         (2) “Appurtenant works” means any artificial improvements
   33  to a dam which might affect the safety of such dam or, when
   34  employed, might affect the holding capacity of such dam or of
   35  the reservoir or impoundment created by such dam.
   36         (10)(3) “Impoundment” means any lake, reservoir, pond, or
   37  other containment of surface water occupying a bed or depression
   38  in the earth’s surface and having a discernible shoreline.
   39         (18)(4) “Reservoir” means any artificial or natural holding
   40  area which contains or will contain the water impounded by a
   41  dam.
   42         (23)(5) “Works” means all artificial structures, including,
   43  but not limited to, ditches, canals, conduits, channels,
   44  culverts, pipes, and other construction that connects to, draws
   45  water from, drains water into, or is placed in or across the
   46  waters in the state.
   47         (3)(6) “Closed system” means any reservoir or works located
   48  entirely within agricultural lands owned or controlled by the
   49  user and which requires water only for the filling,
   50  replenishing, and maintaining the water level thereof.
   51         (1)(7) “Alter” means to extend a dam or works beyond
   52  maintenance in its original condition, including changes which
   53  may increase or diminish the flow or storage of surface water
   54  which may affect the safety of such dam or works.
   55         (12)(8) “Maintenance” or “repairs” means remedial work of a
   56  nature as may affect the safety of any dam, impoundment,
   57  reservoir, or appurtenant work or works, but excludes routine
   58  custodial maintenance.
   59         (5)(9) “Drainage basin” means a subdivision of a watershed.
   60         (21)(10) “Stormwater management system” means a system
   61  which is designed and constructed or implemented to control
   62  discharges which are necessitated by rainfall events,
   63  incorporating methods to collect, convey, store, absorb,
   64  inhibit, treat, use, or reuse water to prevent or reduce
   65  flooding, overdrainage, environmental degradation, and water
   66  pollution or otherwise affect the quantity and quality of
   67  discharges from the system.
   68         (20)(11) “State water quality standards” means water
   69  quality standards adopted pursuant to chapter 403.
   70         (22)(12) “Watershed” means the land area that which
   71  contributes to the flow of water into a receiving body of water.
   72         (6)(13) “Dredging” means excavation, by any means, in
   73  surface waters or wetlands, as delineated in s. 373.421(1). The
   74  term It also means the excavation, or creation, of a water body
   75  which is, or is to be, connected to surface waters or wetlands,
   76  as delineated in s. 373.421(1), directly or via an excavated
   77  water body or series of water bodies.
   78         (9)(14) “Filling” means the deposition, by any means, of
   79  materials in surface waters or wetlands, as delineated in s.
   80  373.421(1).
   81         (8)(15) “Estuary” means a semienclosed, naturally existing
   82  coastal body of water that which has a free connection with the
   83  open sea and within which seawater is measurably diluted with
   84  fresh water derived from riverine systems.
   85         (11)(16) “Lagoon” means a naturally existing coastal zone
   86  depression that which is below mean high water and that which
   87  has permanent or ephemeral communications with the sea, but
   88  which is protected from the sea by some type of naturally
   89  existing barrier.
   90         (19)(17) “Seawall” means a manmade wall or encroachment,
   91  except riprap, which is made to break the force of waves and to
   92  protect the shore from erosion.
   93         (7)(18) “Ecological value” means the value of functions
   94  performed by uplands, wetlands, and other surface waters to the
   95  abundance, diversity, and habitats of fish, wildlife, and listed
   96  species. These functions include, but are not limited to,
   97  providing cover and refuge; breeding, nesting, denning, and
   98  nursery areas; corridors for wildlife movement; food chain
   99  support; and natural water storage, natural flow attenuation,
  100  and water quality improvement, which enhances fish, wildlife,
  101  and listed species utilization.
  102         (13)(19) “Mitigation bank” means a project permitted under
  103  s. 373.4136 which is undertaken to provide for the withdrawal of
  104  mitigation credits to offset adverse impacts authorized by a
  105  permit under this part.
  106         (14)(20) “Mitigation credit” means a standard unit of
  107  measure which represents the increase in ecological value
  108  resulting from restoration, enhancement, preservation, or
  109  creation activities.
  110         (15)(21) “Mitigation service area” means the geographic
  111  area within which mitigation credits from a mitigation bank may
  112  be used to offset adverse impacts of activities regulated under
  113  this part.
  114         (16)(22) “Offsite regional mitigation” means mitigation on
  115  an area of land off the site of an activity permitted under this
  116  part, where an applicant proposes to mitigate the adverse
  117  impacts of only the applicant’s specific activity as a
  118  requirement of the permit, which provides regional ecological
  119  value, and which is not a mitigation bank permitted under s.
  120  373.4136.
  121         (17)Proximity factor” means the variable measurement used
  122  to determine the amount of wetland mitigation credits required
  123  based on the location of the project site relative to the
  124  wetland mitigation bank and its significance within the basin.
  125         Section 2. Present subsections (7) through (11) of section
  126  373.4136, Florida Statutes, are redesignated as subsections (8)
  127  through (12), respectively, a new subsection (7) is added to
  128  that section, and paragraph (d) of subsection (6) of that
  129  section is amended, to read:
  130         373.4136 Establishment and operation of mitigation banks.—
  131         (6) MITIGATION SERVICE AREA.—The department or water
  132  management district shall establish a mitigation service area
  133  for each mitigation bank permit. The department or water
  134  management district shall notify and consider comments received
  135  on the proposed mitigation service area from each local
  136  government within the proposed mitigation service area. Except
  137  as provided herein, mitigation credits may be withdrawn and used
  138  only to offset adverse impacts in the mitigation service area.
  139  The boundaries of the mitigation service area shall depend upon
  140  the geographic area where the mitigation bank could reasonably
  141  be expected to offset adverse impacts. Mitigation service areas
  142  may overlap, and mitigation service areas for two or more
  143  mitigation banks may be approved for a regional watershed.
  144         (d) If the requirements in s. 373.414(1)(b) and (8) are
  145  met, the following projects or activities regulated under this
  146  part are shall be eligible to use a mitigation bank, regardless
  147  of whether the projects or activities they are located within
  148  the mitigation service area:
  149         1. Projects with adverse impacts partially located within
  150  the mitigation service area.
  151         2. Linear projects, such as roadways, transmission lines,
  152  distribution lines, pipelines, railways, or seaports listed in
  153  s. 311.09(1).
  154         3. Projects with total adverse impacts of less than 1 acre
  155  in size.
  156         4.Projects approved by the department or water management
  157  district on a case-by-case basis if sufficient quantities of
  158  mitigation credits are not available to be sold or used to
  159  offset imminent and otherwise allowable adverse impacts within a
  160  mitigation service area.
  161         (7)MITIGATION CREDITS OUTSIDE THE PROJECT AREA BASIN.—
  162         (a)If mitigation credits are not available within a
  163  project area basin, the department or water management district
  164  must allow the use of any mitigation credits available within a
  165  mitigation bank in a surrounding basin. Mitigation credits are
  166  deemed unavailable in a basin if the entity requesting the
  167  wetland mitigation credits provides to the department or water
  168  management district a signed letter by the mitigation bank
  169  within the project area basin attesting that credits are not
  170  available for the time period the credits would be used.
  171         (b)In determining the amount of mitigation credits to be
  172  awarded, the department or water management district must
  173  evaluate the loss of environmental impacts and how best to
  174  address such loss. The department or water management district
  175  must assess the likelihood for ecological success and
  176  sustainability and the location of the mitigation banking site
  177  relative to the project site and its significance within the
  178  basin. The department or water management district may require a
  179  mitigation credit ratio greater than 1 to 1 when necessary to
  180  account for the distance between a mitigation service area and a
  181  surrounding basin.
  182         (c)The department and water management district must use a
  183  proximity factor to determine how many additional credits may be
  184  required for a project using mitigation credits from outside the
  185  project area basin.
  186         1.If the project site is outside of the mitigation bank
  187  service area, but within a continuous basin, up to 1.5
  188  mitigation credits may be required.
  189         2.If the project site is outside of the mitigation bank
  190  service area and located within the watershed, but not
  191  contiguous to the basin of the project site, up to 2 mitigation
  192  credits may be required.
  193         3.For each additional basin away from the project site, an
  194  additional 0.25 mitigation credits may be required.
  195         4.The resulting proximity factor must be used to determine
  196  the number of mitigation credits required by a functional
  197  assessment to determine the total number of credits necessary
  198  for wetland mitigation.
  199         (d)The use of mitigation credits outside the basin may not
  200  affect any United States Army Corps of Engineers credits and
  201  consultation may be required regarding such use.
  202         (e)The department shall adopt rules to implement this
  203  section and shall publish a notice of the proposed rules
  204  pursuant to s. 120.54(3)(a) by September 1, 2024.
  205         Section 3. Paragraph (a) of subsection (2) of section
  206  330.41, Florida Statutes, is amended to read:
  207         330.41 Unmanned Aircraft Systems Act.—
  208         (2) DEFINITIONS.—As used in this act, the term:
  209         (a) “Critical infrastructure facility” means any of the
  210  following, if completely enclosed by a fence or other physical
  211  barrier that is obviously designed to exclude intruders, or if
  212  clearly marked with a sign or signs which indicate that entry is
  213  forbidden and which are posted on the property in a manner
  214  reasonably likely to come to the attention of intruders:
  215         1. A power generation or transmission facility, substation,
  216  switching station, or electrical control center.
  217         2. A chemical or rubber manufacturing or storage facility.
  218         3. A water intake structure, water treatment facility,
  219  wastewater treatment plant, or pump station.
  220         4. A mining facility.
  221         5. A natural gas or compressed gas compressor station,
  222  storage facility, or natural gas or compressed gas pipeline.
  223         6. A liquid natural gas or propane gas terminal or storage
  224  facility.
  225         7. Any portion of an aboveground oil or gas pipeline.
  226         8. A refinery.
  227         9. A gas processing plant, including a plant used in the
  228  processing, treatment, or fractionation of natural gas.
  229         10. A wireless communications facility, including the
  230  tower, antennae, support structures, and all associated ground
  231  based equipment.
  232         11. A seaport as listed in s. 311.09(1), which need not be
  233  completely enclosed by a fence or other physical barrier and
  234  need not be marked with a sign or signs indicating that entry is
  235  forbidden.
  236         12. An inland port or other facility or group of facilities
  237  serving as a point of intermodal transfer of freight in a
  238  specific area physically separated from a seaport.
  239         13. An airport as defined in s. 330.27.
  240         14. A spaceport territory as defined in s. 331.303(18).
  241         15. A military installation as defined in 10 U.S.C. s.
  242  2801(c)(4) and an armory as defined in s. 250.01.
  243         16. A dam as defined in s. 373.403 s. 373.403(1) or other
  244  structures, such as locks, floodgates, or dikes, which are
  245  designed to maintain or control the level of navigable
  246  waterways.
  247         17. A state correctional institution as defined in s.
  248  944.02 or a private correctional facility authorized under
  249  chapter 957.
  250         18. A secure detention center or facility as defined in s.
  251  985.03, or a nonsecure residential facility, a high-risk
  252  residential facility, or a maximum-risk residential facility as
  253  those terms are described in s. 985.03(44).
  254         19. A county detention facility as defined in s. 951.23.
  255         20. A critical infrastructure facility as defined in s.
  256  692.201.
  257         Section 4. Paragraph (a) of subsection (8) of section
  258  373.414, Florida Statutes, is amended to read:
  259         373.414 Additional criteria for activities in surface
  260  waters and wetlands.—
  261         (8)(a) The governing board or the department, in deciding
  262  whether to grant or deny a permit for an activity regulated
  263  under this part shall consider the cumulative impacts upon
  264  surface water and wetlands, as delineated in s. 373.421(1),
  265  within the same drainage basin as defined in s. 373.403 s.
  266  373.403(9), of:
  267         1. The activity for which the permit is sought.
  268         2. Projects which are existing or activities regulated
  269  under this part which are under construction or projects for
  270  which permits or determinations pursuant to s. 373.421 or s.
  271  403.914 have been sought.
  272         3. Activities which are under review, approved, or vested
  273  pursuant to s. 380.06, or other activities regulated under this
  274  part which may reasonably be expected to be located within
  275  surface waters or wetlands, as delineated in s. 373.421(1), in
  276  the same drainage basin as defined in s. 373.403 s. 373.403(9),
  277  based upon the comprehensive plans, adopted pursuant to chapter
  278  163, of the local governments having jurisdiction over the
  279  activities, or applicable land use restrictions and regulations.
  280         Section 5. Paragraph (c) of subsection (2) of section
  281  373.461, Florida Statutes, is amended to read:
  282         373.461 Lake Apopka improvement and management.—
  283         (2) DEFINITIONS.—As used in this section:
  284         (c) “Stormwater management system” has the meaning set
  285  forth in s. 373.403 s. 373.403(10).
  286         Section 6. This act shall take effect upon becoming a law.