Florida Senate - 2022                        COMMITTEE AMENDMENT
       Bill No. SB 1426
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  01/31/2022           .                                

       The Committee on Environment and Natural Resources (Burgess)
       recommended the following:
    1         Senate Amendment (with title amendment)
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Section 373.4134, Florida Statutes, is created
    6  to read:
    7         373.4134Water quality enhancement areas.—
    8         (1)LEGISLATIVE FINDINGS AND INTENT.—The Legislature finds
    9  that:
   10         (a)Water quality will be improved and adverse water
   11  quality impacts of activities regulated under this part may be
   12  offset by the construction, operation, maintenance, and long
   13  term management of water quality enhancement areas that provide
   14  offsite compensatory treatment.
   15         (b)An expansion of existing authority for regional
   16  treatment to include offsite compensatory treatment in water
   17  quality enhancement areas to make credits available for purchase
   18  by governmental entities to offset impacts regulated under this
   19  part is needed.
   20         (c)The construction, operation, maintenance, and long-term
   21  management of water quality enhancement areas pursuant to this
   22  section will improve the certainty and long-term viability of
   23  water quality treatment systems.
   24         (d)Water quality enhancement areas are a valuable tool to
   25  assist governmental entities in satisfying the net improvement
   26  performance standard pursuant to s. 373.414(1)(b)3. to ensure
   27  significant reductions of pollutant loadings.
   28         (e)Water quality enhancement areas that provide water
   29  quality enhancement credits to governmental entities seeking
   30  permits under this part and to governmental entities seeking to
   31  meet an assigned basin management action plan allocation or
   32  reasonable assurance plan pursuant to s. 403.067 are considered
   33  an appropriate and permittable option.
   34         (2)DEFINITIONS.—As used in this section, the term:
   35         (a)“Enhancement credit” means a standard unit of measure
   36  which represents a quantity of pollutant removed.
   37         (b)“Enhancement service area” means the geographic area
   38  where the water quality enhancement area can reasonably be
   39  expected to offset adverse water quality impacts.
   40         (c)“Governmental entity” means any political subdivision
   41  of this state, including any state agency, department, county,
   42  municipality, special district, school district, utility
   43  authority, or other authority or instrumentality, agency, unit,
   44  or department thereof.
   45         (d)“Planning unit” means the total maximum daily load
   46  planning unit that is an individual tributary basin or a group
   47  of smaller adjacent tributary basins with similar
   48  characteristics.
   49         (e)“Water quality enhancement area” means a natural system
   50  constructed, operated, managed, and maintained pursuant to a
   51  permit issued under this section for the purpose of providing
   52  offsite, compensatory, regional treatment within an identified
   53  enhancement service area, for which enhancement credits may be
   54  provided.
   55         (f)“Water quality enhancement area permit” means a permit
   56  issued for a water quality enhancement area which authorizes the
   57  construction, operation, management, and maintenance of the area
   58  and the purchase and sale of enhancement credits.
   60         (a)The construction, operation, management, and
   61  maintenance of a water quality enhancement area must be approved
   62  through the environmental resource permitting process.
   63  Department rules pertaining to environmental resource permits
   64  apply to water quality enhancement areas and enhancement
   65  credits.
   66         (b)Water quality enhancement credits may be sold only to
   67  governmental entities.
   68         (c)A water quality enhancement area must address
   69  contributions of pollutants for those parameters in an
   70  enhancement service area which do not meet state water quality
   71  standards.
   72         (d)A water quality enhancement area must use, create, or
   73  improve natural systems in order to improve water quality.
   74         (e)A governmental entity may use a water quality
   75  enhancement area for its own water quality needs. However, a
   76  governmental entity may not act as a sponsor to construct,
   77  operate, manage, maintain, or market enhancement credits to
   78  third parties.
   79         (f)A local government may not require a permit or
   80  otherwise impose regulations governing the operation of a water
   81  quality enhancement area.
   83         (a)To obtain a water quality enhancement area permit, the
   84  applicant must provide reasonable assurances that the proposed
   85  water quality enhancement area will:
   86         1.Meet the requirements for issuance of an environmental
   87  resource permit.
   88         2.Benefit water quality in the enhancement service area.
   89         3.Achieve defined performance or success criteria for the
   90  reduction of pollutants or other constituents that prevent
   91  receiving waters from meeting state water quality standards.
   92         4.Assure long-term pollutant reduction through effective
   93  operation and maintenance in perpetuity by designation of a
   94  responsible long-term maintenance entity supported by an
   95  endowment or other long-term financial assurance sufficient to
   96  assure perpetual maintenance.
   97         5.Demonstrate sufficient legal or equitable interest in
   98  the property to ensure access and perpetual protection and
   99  management of the land within the water quality enhancement
  100  area.
  101         6.Provide for permanent preservation of the site pursuant
  102  to s. 704.06.
  103         (b)The water quality enhancement area permit must provide
  104  for the assessment, valuation, and award of credits based on
  105  units of pollutant removed. To assist the department in
  106  determining enhancement credits, a water quality enhancement
  107  area application must include the following information:
  108         1.Rainfall data over the longest period of record
  109  available, collected from the closest site to the proposed water
  110  quality enhancement area, preferably within the same drainage
  111  basin.
  112         2.Anticipated average annual water quality and quantity
  113  inflows to the proposed water quality enhancement area, based on
  114  published local data collected over a period of record that most
  115  closely matches the rainfall data under this paragraph.
  116         3.Site-specific conditions affecting the anticipated
  117  performance of the proposed water quality enhancement area,
  118  including the proposed treatment type and anticipated associated
  119  reduction rates, as demonstrated by the performance of other
  120  areas where the treatment type has been established and
  121  operating over a minimum of two consecutive wet and dry seasons.
  122         4.Data from collection stations approved in advance by the
  123  department in sites that the department deems sufficient to
  124  determine flows and local water quality conditions.
  125         (c)The issuance of a water quality enhancement area permit
  126  under this section does not preclude the responsibility of an
  127  applicant to obtain other applicable federal, state, and local
  128  permits for the construction activities associated with the
  129  water quality enhancement area.
  131         (a)An enhancement service area must be based on a basin
  132  management action plan or reasonable assurance plan boundary
  133  adopted by the department. If the department does not adopt a
  134  basin management action plan or reasonable assurance plan
  135  boundary, the enhancement service area must be the planning
  136  unit.
  137         (b)A water quality enhancement area may provide
  138  enhancement credits only in an enhancement service area, except
  139  for:
  140         1.Projects with adverse impacts located partially within
  141  the enhancement service area.
  142         2.Linear projects, such as roadways, transmission lines,
  143  distribution lines, pipelines, railways, or seaports listed in
  144  s. 311.09(1).
  145         (c)Once an enhancement service area has been established
  146  by the department, the enhancement service area must be accepted
  147  by all water management districts and local governments.
  148         (6)ENHANCEMENT CREDITS.—
  149         (a)The department or water management district shall
  150  authorize the sale and use of enhancement credits governmental
  151  entities to offset adverse water quality impacts of activities
  152  regulated under this part or to assist governmental entities
  153  seeking to meet an assigned basin management action plan
  154  allocation or reasonable assurance plan pursuant to s. 403.067.
  155         (b)Water quality improvement projects using natural
  156  systems or land use modifications, including, but not limited
  157  to, constructed wetlands or minor impoundments that reduce
  158  pollutants to a receiving water body, may be used by an
  159  applicant to generate enhancement credits if approved by the
  160  department.
  161         (c)The department shall provide for and maintain a ledger
  162  that tracks the award, release, and use of enhancement credits.
  163         1.The operator of a water quality enhancement area shall
  164  notify the department of the amount of enhancement credits sold
  165  or used within 30 days of the date the enhancement credit
  166  transaction is completed.
  167         2.A water management district that authorizes applicants
  168  seeking permits under this part to use enhancement credits to
  169  offset water quality impacts must report to the department the
  170  amount of enhancement credits used by the applicant.
  171         (d)Reductions in pollutant loading required under any
  172  state regulatory program are not eligible to be considered as
  173  enhancement credits.
  174         (e)Enhancement credits may not be used by point source
  175  dischargers to satisfy regulatory requirements other than those
  176  necessary to obtain an environmental resource permit for
  177  construction and operation of the surface water management
  178  system of the site.
  179         (f)Use of enhancement credits made available by water
  180  quality enhancement areas is voluntary.
  181         (g)Any landowner, discharger, or other responsible person
  182  regulated under this part or s. 403.067 implementing applicable
  183  management strategies specified in an adopted basin management
  184  action plan or reasonable assurance plan may not be required by
  185  any permit or other enforcement action to use enhancement
  186  credits to reduce pollutant loads to achieve the pollutant
  187  reductions established pursuant to s. 403.067.
  188         (h)A local government may not deny the use of enhancement
  189  credits due to the location of the water quality enhancement
  190  area outside the jurisdiction of the local government.
  191         (7)AUTHORITY.—The authority granted to the department
  192  under this section is supplemental to the authority granted
  193  under s. 403.067(8).
  194         (8)RULES.—The department may adopt rules to implement this
  195  section.
  196         Section 2. Subsection (22) of section 403.061, Florida
  197  Statutes, is amended to read:
  198         403.061 Department; powers and duties.—The department shall
  199  have the power and the duty to control and prohibit pollution of
  200  air and water in accordance with the law and rules adopted and
  201  promulgated by it and, for this purpose, to:
  202         (22)(a) Advise, consult, cooperate, and enter into
  203  agreements and contracts with other agencies of the state, the
  204  Federal Government, other states, interstate agencies, groups,
  205  political subdivisions, and industries affected by the
  206  provisions of this act, rules, or policies of the department.
  207  However, the secretary of the department shall not enter into
  208  any interstate agreement relating to the transport of ozone
  209  precursor pollutants, nor modify its rules based upon a
  210  recommendation from the Ozone Transport Assessment Group or any
  211  other such organization that is not an official subdivision of
  212  the United States Environmental Protection Agency but which
  213  studies issues related to the transport of ozone precursor
  214  pollutants, without prior review and specific legislative
  215  approval.
  216         (b)Enter into agreements and contracts with public or
  217  private entities to accept and expend donations, grants of
  218  funds, and payments to expedite the evaluation of the entity’s
  219  application for a permit under s. 373.4131 or s. 373.4146. Such
  220  agreements and contracts must be effective for at least 3 years.
  221  Permit evaluations under this paragraph must follow the same
  222  permit application evaluation procedures as those for an entity
  223  that does not have an agreement or a contract with the
  224  department. The department shall ensure that agreements and
  225  contracts entered into under this paragraph do not substantively
  226  or procedurally affect the impartial evaluation of the entity’s
  227  permit application. Such active agreements and contracts must be
  228  posted on the department’s website.
  230  The department shall implement such programs in conjunction with
  231  its other powers and duties and shall place special emphasis on
  232  reducing and eliminating contamination that presents a threat to
  233  humans, animals or plants, or to the environment.
  234         Section 3. Paragraph (b) of subsection (1) and paragraphs
  235  (a), (b), and (d) of subsection (3) of section 403.892, Florida
  236  Statutes, are amended, and subsection (6) is added to that
  237  section, to read:
  238         403.892 Incentives for the use of graywater technologies.—
  239         (1) As used in this section, the term:
  240         (b) “Graywater” has the same meaning as in s.
  241  381.0065(2)(f) s. 381.0065(2)(e).
  242         (3) To qualify for the incentives under subsection (2), the
  243  developer or homebuilder must certify to the applicable
  244  governmental entity as part of its application for development
  245  approval or amendment of a development order that all of the
  246  following conditions are met:
  247         (a) The proposed or existing development has at least 25
  248  single-family residential homes that are either detached or
  249  multifamily dwellings. This paragraph does not apply to
  250  multifamily projects over five stories in height.
  251         (b) Each single-family residential home or residence will
  252  have its own residential graywater system that is dedicated for
  253  its use. Each residence forming part of a multifamily project
  254  will be serviced by either its own residential graywater system
  255  dedicated for its use or a master graywater collection and reuse
  256  system for the entire project.
  257         (d) The required maintenance of the graywater system will
  258  be the responsibility of the owner residential homeowner.
  259         (6)This section does not apply to multifamily projects
  260  more than five stories in height. Whether a dwelling is occupied
  261  by an owner is not an eligibility criterion for a developer or
  262  homebuilder to receive the incentives authorized pursuant to
  263  this section.
  264         Section 4. The Department of Environmental Protection shall
  265  adopt and modify rules adopted pursuant to ss. 373.4136 and
  266  373.414, Florida Statutes, to ensure that required financial
  267  assurances are equivalent and sufficient to provide for the
  268  long-term management of mitigation permitted under ss. 373.4136
  269  and 373.414, Florida Statutes. The department, in consultation
  270  with the water management districts, shall include the
  271  rulemaking required by this section in existing active
  272  rulemaking or shall complete rule development by June 30, 2023.
  273         Section 5. Effective July 1, 2022, the sum of $2.04 million
  274  in recurring funds from the Grants and Donations Trust Fund is
  275  appropriated to the Department of Environmental Protection, and
  276  24 full-time equivalent positions are authorized, to evaluate
  277  applications for permits issued under ss. 373.4131 and 373.4146,
  278  Florida Statutes, for entities with which the department has
  279  entered into agreements or contracts under s. 403.061(22),
  280  Florida Statutes. To obtain and retain such positions, the
  281  department may increase the maximum rate of basic pay up to 30
  282  percent for each position.
  283         Section 6. This act shall take effect upon becoming a law.
  285  ================= T I T L E  A M E N D M E N T ================
  286  And the title is amended as follows:
  287         Delete everything before the enacting clause
  288  and insert:
  289                        A bill to be entitled                      
  290         An act relating to environmental management; creating
  291         s. 373.4134, F.S.; providing legislative findings and
  292         intent; defining terms; providing for water quality
  293         enhancement areas, enhancement service areas, and
  294         enhancement credits; providing requirements for water
  295         quality enhancement area permits, enhancement service
  296         areas, and enhancement credits; directing the
  297         Department of Environmental Protection and water
  298         management districts to authorize the sale and use of
  299         enhancement credits to offset certain adverse water
  300         quality impacts and to meet certain water quality
  301         requirements; providing construction; requiring the
  302         department to maintain enhancement credit ledgers;
  303         authorizing the department to adopt rules; amending s.
  304         403.061, F.S.; authorizing the department to enter
  305         into agreements and contracts with public and private
  306         entities for donations, funds, and payments to
  307         expedite the evaluation of environmental resource and
  308         dredge and fill permits; providing requirements for
  309         such agreements and contracts and permit evaluations;
  310         requiring the department to make such agreements and
  311         contracts publicly available on its website; amending
  312         s. 403.892, F.S.; correcting a cross-reference;
  313         revising the conditions that a developer or
  314         homebuilder must certify it meets as part of its
  315         application for development approval or amendment of a
  316         development order; providing applicability; requiring
  317         the department to adopt or modify specified rules, as
  318         applicable; providing requirements for such
  319         rulemaking; providing an appropriation and authorizing
  320         full-time equivalent positions; authorizing the
  321         department to increase the maximum rate of basic pay
  322         for certain positions by up to a specified percentage;
  323         providing an effective date.