Florida Senate - 2022              PROPOSED COMMITTEE SUBSTITUTE
       Bill No. CS for SB 1426
       
       
       
       
       
                               Ì666660/Î666660                          
       
       576-03100-22                                                    
       Proposed Committee Substitute by the Committee on Appropriations
       (Appropriations Subcommittee on Agriculture, Environment, and
       General Government)
    1                        A bill to be entitled                      
    2         An act relating to environmental management; creating
    3         s. 373.4134, F.S.; providing legislative findings and
    4         intent; defining terms; providing for water quality
    5         enhancement areas; providing requirements for water
    6         quality enhancement areas and permits; requiring
    7         applicants to propose performance and success criteria
    8         monitoring and verification plans that meet certain
    9         requirements; providing requirements for enhancement
   10         credits; requiring the Department of Environmental
   11         Protection to revoke a permit under certain
   12         conditions; requiring the department and water
   13         management districts to authorize the sale and use of
   14         enhancement credits to governmental entities to
   15         address certain adverse water quality impacts and to
   16         meet certain water quality requirements; requiring the
   17         department to maintain enhancement credit ledgers;
   18         providing construction; authorizing the department to
   19         adopt rules; amending s. 403.892, F.S.; correcting a
   20         cross-reference; revising the conditions that a
   21         developer or homebuilder must certify it meets as part
   22         of its application for development approval or
   23         amendment of a development order; providing
   24         applicability; requiring the department to adopt and
   25         modify specified rules, as applicable; providing
   26         requirements for such rulemaking; providing an
   27         effective date.
   28          
   29  Be It Enacted by the Legislature of the State of Florida:
   30  
   31         Section 1. Section 373.4134, Florida Statutes, is created
   32  to read:
   33         373.4134Water quality enhancement areas.—
   34         (1)LEGISLATIVE FINDINGS AND INTENT.—The Legislature finds
   35  that:
   36         (a)Water quality will be improved and adverse water
   37  quality impacts of activities regulated under this part may be
   38  offset by the construction, operation, maintenance, and long
   39  term management of water quality enhancement areas that provide
   40  offsite compensatory treatment.
   41         (b)An expansion of existing authority for regional
   42  treatment to include offsite compensatory treatment in water
   43  quality enhancement areas to make credits available for purchase
   44  by governmental entities to address impacts regulated under this
   45  part is needed.
   46         (c)The construction, operation, maintenance, and long-term
   47  management of water quality enhancement areas pursuant to this
   48  section will improve the certainty and long-term viability of
   49  water quality treatment systems.
   50         (d)Water quality enhancement areas are a valuable tool to
   51  assist governmental entities in satisfying the net improvement
   52  performance standard pursuant to s. 373.414(1)(b)3. to ensure
   53  significant reductions of pollutant loadings.
   54         (e)Water quality enhancement areas that provide water
   55  quality enhancement credits to governmental entities seeking
   56  permits under this part and to governmental entities seeking to
   57  meet an assigned basin management action plan allocation or
   58  reasonable assurance plan pursuant to s. 403.067 are considered
   59  an appropriate and permittable option.
   60         (2)DEFINITIONS.—As used in this section, the term:
   61         (a)“Enhancement credit” means a standard unit of measure
   62  which represents a quantity of pollutant removed.
   63         (b)“Governmental entity” means any political subdivision
   64  of the state, including any state agency, department, agency of
   65  the state, county, municipality, special district, school
   66  district, utility authority, or other authority or
   67  instrumentality, agency, unit, or department thereof.
   68         (c)“Natural system” means an ecological system supporting
   69  aquatic and wetland-dependent natural resources, including fish
   70  and aquatic and wetland-dependent wildlife habitats.
   71         (d)“Water quality enhancement area” means a natural system
   72  constructed, operated, managed, and maintained for the purpose
   73  of providing offsite regional treatment for which enhancement
   74  credits may be provided pursuant to a water quality enhancement
   75  area permit issued under this section.
   76         (e)“Water quality enhancement area permit” means an
   77  environmental resource permit issued for a water quality
   78  enhancement area which authorizes the construction, operation,
   79  management, and maintenance of an enhancement area and the
   80  purchase and sale of enhancement credits.
   81         (3)WATER QUALITY ENHANCEMENT AREAS.—
   82         (a)The construction, operation, management, and
   83  maintenance of a water quality enhancement area must be approved
   84  through the environmental resource permitting process.
   85         (b)Water quality enhancement credits may be sold only to
   86  governmental entities.
   87         (c)A water quality enhancement area must be used to
   88  address contributions of one or more pollutants or other
   89  constituents in the watershed in which the water quality
   90  enhancement area is located which do not meet applicable state
   91  water quality criteria.
   92         (d)A water quality enhancement area must be employed to
   93  use, create, or improve natural systems in order to improve
   94  water quality.
   95         (e)A governmental entity may use a water quality
   96  enhancement area for its own water quality needs. However, a
   97  governmental entity may not act as a sponsor to construct,
   98  operate, manage, or maintain a water quality enhancement area or
   99  market enhancement credits to third parties.
  100         (f)A local government may not require a permit or
  101  otherwise impose regulations governing the operation of a water
  102  quality enhancement area.
  103         (g)This section does not eliminate the obligation of an
  104  applicant for a water quality enhancement area permit or an
  105  applicant proposing to use enhancement credits to comply with
  106  all requirements of this part pertaining to adverse impacts to
  107  water quality in receiving waters and adjacent lands or
  108  wetlands.
  109         (4)WATER QUALITY ENHANCEMENT AREA PERMIT.—
  110         (a)To obtain a water quality enhancement area permit, the
  111  applicant must provide reasonable assurances that the proposed
  112  water quality enhancement area will be used to:
  113         1.Meet the requirements for issuance of an environmental
  114  resource permit;
  115         2.Benefit water quality in the watershed in which the
  116  water quality enhancement area is located;
  117         3.Meet defined performance or success criteria for the
  118  reduction of one or more pollutants or other constituents that
  119  prevent receiving waters from meeting applicable state water
  120  quality criteria;
  121         4.Ensure long-term pollutant reduction through effective
  122  operation and maintenance in perpetuity by designation of a
  123  responsible long-term maintenance entity supported by an
  124  endowment or other long-term financial assurance sufficient to
  125  assure perpetual operation and maintenance;
  126         5.Demonstrate sufficient legal or equitable interest in
  127  the property to ensure access and perpetual protection and
  128  management of the land within the water quality enhancement
  129  area; and
  130         6.Provide for permanent preservation of the water quality
  131  enhancement area which meets the requirements of s. 704.06.
  132         (b)The water quality enhancement area permit must provide
  133  for the assessment, valuation, and award of credits based on
  134  units of pollutant removed.
  135         (c)The department shall base its determination of the
  136  award of enhancement credits on standard numerical models or
  137  analytical tools that establish the water quality enhancement
  138  area’s ability to remove pollutants or constituents.
  139         1.Where a basin management action plan exists for the
  140  watershed in which the water quality enhancement area is
  141  located, the applicant must use the same numerical models or
  142  analytical tools used for that basin management action plan in
  143  the water quality enhancement area permit application.
  144         2.If a basin management action plan does not exist for the
  145  watershed in which the water quality enhancement area is
  146  located, the applicant, with the approval of the department, may
  147  submit as part of the water quality enhancement area permit
  148  application model parameters and results used in a numerical
  149  model or analytical tool used by the department to develop a
  150  basin management action plan for a watershed with similar
  151  physical characteristics and pollutants as that where the
  152  proposed water quality enhancement area is to be located.
  153         3.If the department determines that its numerical model or
  154  analytical tool used for a basin management action plan is not
  155  appropriate for the proposed water quality enhancement area, the
  156  applicant must use a standard numerical model or analytical tool
  157  for the proposed water quality enhancement area.
  158         4.To assist the department in evaluating and determining
  159  enhancement credits, a water quality enhancement area permit
  160  application must include the numerical model or analytical tool
  161  results used to establish the water quality enhancement area’s
  162  efficacy. Supporting information must include, but need not be
  163  limited to:
  164         a.Rainfall data over the longest period of record
  165  available, collected from the closest site to the proposed water
  166  quality enhancement area, preferably within the same drainage
  167  basin.
  168         b.Anticipated average annual water quality and quantity
  169  inflows to the proposed water quality enhancement area, based on
  170  published local data collected over a period of record which
  171  most closely matches the rainfall data under this paragraph.
  172         c.Site-specific conditions affecting the anticipated
  173  performance of the proposed water quality enhancement area,
  174  including the proposed treatment type and the anticipated
  175  associated reduction rates, as demonstrated by the performance
  176  of other areas where the treatment type has been established and
  177  operating over a minimum of two consecutive wet and dry seasons.
  178         d.Data provided pursuant to sub-subparagraphs a. and b.
  179  must be from monitoring stations the department deems sufficient
  180  to determine flows and local water quality conditions.
  181         (d)The issuance of a water quality enhancement area permit
  182  under this section does not preclude the responsibility of an
  183  applicant to obtain other applicable federal, state, and local
  184  permits for the construction activities associated with the
  185  water quality enhancement area.
  186         (5)MONITORING AND VERIFICATION.—
  187         (a)An applicant for a water quality enhancement area
  188  permit must propose a performance and success criteria
  189  monitoring and verification plan, with protocols to be
  190  implemented once the water quality enhancement area is
  191  operational. The protocols must be appropriate for the water
  192  quality enhancement area and sufficient to demonstrate that the
  193  area is meeting defined performance or success criteria for the
  194  reduction of pollutants or contaminants for which credits are
  195  awarded by the department.
  196         (b)If a permittee fails to comply with the conditions of a
  197  water quality enhancement area permit, the department must
  198  revoke the permittee’s ability to sell enhancement credits until
  199  the water quality enhancement area is compliant with the permit
  200  conditions.
  201         (6)ENHANCEMENT CREDITS.—
  202         (a)The department or water management district shall
  203  authorize the sale and use of enhancement credits to
  204  governmental entities to address adverse water quality impacts
  205  of activities regulated under this part or to assist
  206  governmental entities seeking to meet required nonpoint source
  207  contribution reductions assigned in a basin management action
  208  plan or reasonable assurance plan pursuant to s. 403.067.
  209         (b)Before approving the use of enhancement credits, the
  210  department or water management district must determine that the
  211  enhancement credits used by an applicant seeking a permit under
  212  this part are appropriate for a specific permit use.
  213         (c)Water quality improvement projects using natural
  214  systems or land use modifications, including, but not limited
  215  to, constructed wetlands or minor impoundments that reduce
  216  pollutants to a receiving water body, may be used by an
  217  applicant to generate enhancement credits if approved by the
  218  department. Water quality enhancement areas may not be located
  219  on lands purchased for conservation pursuant to the Florida
  220  Forever Act or the Florida Preservation 2000 Act.
  221         (d)The department shall provide for and maintain a ledger
  222  that tracks the award, release, and use of enhancement credits.
  223         1.A water management district that authorizes applicants
  224  seeking permits under this part to use enhancement credits to
  225  address water quality impacts must report to the department the
  226  amount of enhancement credits used by the applicants.
  227         2.The operator of a water quality enhancement area shall
  228  notify the department of the amount of enhancement credits sold
  229  or used within 30 days after the date the enhancement credit
  230  transaction is completed.
  231         (e)Reductions in pollutant loading required under any
  232  state regulatory program are not eligible to be considered as
  233  enhancement credits.
  234         (f)Enhancement credits may not be used by point source
  235  dischargers to satisfy regulatory requirements other than those
  236  necessary to obtain an environmental resource permit for
  237  construction and operation of the surface water management
  238  system of the site.
  239         (g)Use of enhancement credits made available by water
  240  quality enhancement areas is voluntary.
  241         (h)Any landowner, discharger, or other responsible person
  242  regulated under this part or s. 403.067 implementing applicable
  243  management strategies specified in an adopted basin management
  244  action plan or reasonable assurance plan may not be required by
  245  any permit or other enforcement action to use enhancement
  246  credits to reduce pollutant loads to achieve the pollutant
  247  reductions established pursuant to s. 403.067.
  248         (i)A local government may not deny the use of enhancement
  249  credits due to the location of the water quality enhancement
  250  area outside the jurisdiction of the local government.
  251         (7)AUTHORITY.—The authority granted to the department
  252  under this section is supplemental to the authority granted
  253  under s. 403.067(8).
  254         (8)RULES.—The department may adopt rules to implement this
  255  section.
  256         Section 2. Paragraph (b) of subsection (1) and paragraphs
  257  (a), (b), and (d) of subsection (3) of section 403.892, Florida
  258  Statutes, are amended, and subsection (6) is added to that
  259  section, to read:
  260         403.892 Incentives for the use of graywater technologies.—
  261         (1) As used in this section, the term:
  262         (b) “Graywater” has the same meaning as in s.
  263  381.0065(2)(f) s. 381.0065(2)(e).
  264         (3) To qualify for the incentives under subsection (2), the
  265  developer or homebuilder must certify to the applicable
  266  governmental entity as part of its application for development
  267  approval or amendment of a development order that all of the
  268  following conditions are met:
  269         (a) The proposed or existing development has at least 25
  270  single-family residential homes that are either detached or
  271  multifamily dwellings. This paragraph does not apply to
  272  multifamily projects over five stories in height.
  273         (b) Each single-family residential home or residence will
  274  have its own residential graywater system that is dedicated for
  275  its use. Each residence forming part of a multifamily project
  276  will be serviced by either its own residential graywater system
  277  dedicated for its use or a master graywater collection and reuse
  278  system for the entire project.
  279         (d) The required maintenance of the graywater system will
  280  be the responsibility of the owner residential homeowner.
  281         (6)This section does not apply to multifamily projects
  282  more than five stories in height. Whether a dwelling is occupied
  283  by an owner is not an eligibility criterion for a developer or
  284  homebuilder to receive the incentives authorized pursuant to
  285  this section.
  286         Section 3. The Department of Environmental Protection shall
  287  adopt and modify rules adopted pursuant to ss. 373.4136 and
  288  373.414, Florida Statutes, to ensure that required financial
  289  assurances are equivalent and sufficient to provide for the
  290  long-term management of mitigation permitted under ss. 373.4136
  291  and 373.414, Florida Statutes. The department, in consultation
  292  with the water management districts, shall include the
  293  rulemaking required by this section in existing active
  294  rulemaking or shall complete rule development by June 30, 2023.
  295         Section 4. This act shall take effect upon becoming a law.