Florida Senate - 2022                                    SB 1426
       By Senator Burgess
       20-00660A-22                                          20221426__
    1                        A bill to be entitled                      
    2         An act relating to water quality enhancement areas;
    3         creating s. 373.4134, F.S.; providing legislative
    4         findings and intent; defining terms; providing for
    5         water quality enhancement areas, enhancement service
    6         areas, and enhancement credits; providing requirements
    7         for water quality enhancement area permits,
    8         enhancement service areas, and enhancement credits;
    9         directing the Department of Environmental Protection
   10         and water management districts to authorize the sale
   11         and use of enhancement credits to offset certain
   12         adverse water quality impacts and to meet certain
   13         water quality requirements; providing construction;
   14         directing the department to maintain enhancement
   15         credit ledgers and adopt rules; providing an effective
   16         date.
   18  Be It Enacted by the Legislature of the State of Florida:
   20         Section 1. Section 373.4134, Florida Statutes, is created
   21  to read:
   22         373.4134Water quality enhancement areas.—
   23         (1)LEGISLATIVE FINDINGS AND INTENT.—The Legislature finds
   24  that:
   25         (a)Water quality will be improved and adverse water
   26  quality impacts of activities regulated under this part may be
   27  offset by the construction, operation, maintenance, and long
   28  term management of water quality enhancement areas that provide
   29  offsite compensatory treatment.
   30         (b)An expansion of existing authority for regional
   31  treatment to include offsite compensatory treatment in water
   32  quality enhancement areas to make credits available for purchase
   33  to offset impacts regulated under this part, is needed.
   34         (c)The construction, operation, maintenance, and long-term
   35  management of water quality enhancement areas pursuant to this
   36  section will improve the certainty and long-term viability of
   37  water quality treatment systems.
   38         (d)Water quality enhancement areas are a valuable tool to
   39  assist applicants in satisfying the net improvement performance
   40  standard pursuant to s. 373.414(1)(b)3. to ensure significant
   41  reductions of pollutant loadings.
   42         (e)Water quality enhancement areas that provide water
   43  quality enhancement credits to applicants seeking permits under
   44  this part and entities seeking to meet an assigned basin
   45  management action plan allocation or reasonable assurance plan
   46  pursuant to s. 403.067 are considered an appropriate and
   47  permittable option.
   48         (2)DEFINITIONS.—As used in this section, the term:
   49         (a)“Enhancement credit” means a standard unit of measure
   50  which represents a quantity of pollutant removed.
   51         (b)“Enhancement service area” means the geographic area
   52  where the water quality enhancement area can reasonably be
   53  expected to offset adverse water quality impacts.
   54         (c)“Planning unit” means the total maximum daily load
   55  planning unit that is an individual tributary basin or a group
   56  of smaller adjacent tributary basins with similar
   57  characteristics.
   58         (d)“Water quality enhancement area” means a natural system
   59  constructed, operated, managed, and maintained pursuant to a
   60  permit issued under this part for the purpose of providing
   61  offsite, compensatory, regional treatment within an identified
   62  enhancement service area, for which enhancement credits may be
   63  provided.
   64         (e)“Water quality enhancement area permit” means a permit
   65  issued for a water quality enhancement area which authorizes the
   66  construction, operation, management, and maintenance of the area
   67  and the purchase and sale of enhancement credits.
   69         (a)An environmental resource permit issued by the
   70  department under this part must authorize the construction,
   71  operation, management, and maintenance of a water quality
   72  enhancement area. Department rules pertaining to environmental
   73  resource permits apply to water quality enhancement areas and
   74  enhancement credits.
   75         (b)A water quality enhancement area must address
   76  contributions of pollutants for those parameters in an
   77  enhancement service area which do not meet state water quality
   78  standards.
   79         (c)A water quality enhancement area must use, create, or
   80  improve natural systems in order to improve water quality.
   81         (d)A water quality enhancement area may not provide
   82  credits to compensate for wetland or other surface water
   83  impacts.
   84         (e)A governmental entity may use a water quality
   85  enhancement area for its own water quality needs. However, a
   86  governmental entity may not act as a sponsor to construct,
   87  operate, manage, maintain, or market enhancement credits to
   88  third parties.
   89         (f)A local government may not require a permit or
   90  otherwise impose regulations governing the operation of a water
   91  quality enhancement area.
   93         (a)To obtain a water quality enhancement area permit, the
   94  applicant must provide reasonable assurances that the proposed
   95  water quality enhancement area will:
   96         1.Meet the requirements for issuance of an environmental
   97  resource permit.
   98         2.Benefit water quality in the enhancement service area.
   99         3.Achieve defined performance or success criteria for the
  100  reduction of pollutants or other constituents that prevent
  101  receiving waters from meeting state water quality standards.
  102         4.Assure long-term pollutant reduction through effective
  103  operation and maintenance in perpetuity by designation of a
  104  responsible long-term maintenance entity supported by an
  105  endowment or other long-term financial assurance sufficient to
  106  assure perpetual maintenance.
  107         5.Demonstrate sufficient legal or equitable interest in
  108  the property to ensure access and perpetual protection and
  109  management of the land within the water quality enhancement
  110  area.
  111         6.Provide for permanent preservation of the site pursuant
  112  to s. 704.06.
  113         (b)The water quality enhancement area permit must provide
  114  for the assessment, valuation, and award of credits based on
  115  units of pollutant removed. To assist the department in
  116  determining enhancement credits, a water quality enhancement
  117  area application must include the following information:
  118         1.Rainfall data over the longest period of record
  119  available collected from the closest site to the proposed water
  120  quality enhancement area, preferably within the same drainage
  121  basin.
  122         2.Anticipated average annual water quality and quantity
  123  inflows to the proposed water quality enhancement area, based on
  124  published local data collected over a period of record that most
  125  closely matches the rainfall data under this paragraph.
  126         3.Site-specific conditions affecting the anticipated
  127  performance of the proposed water quality enhancement area,
  128  including the proposed treatment type and anticipated associated
  129  reduction rates, as demonstrated by the performance of other
  130  areas where the treatment type has been established and
  131  operating over a minimum of two consecutive wet and dry seasons.
  132         4.Proposed data collection sites. An applicant may use
  133  data collection stations approved in advance by the department
  134  in sites that the department deems insufficient to determine
  135  flows and local water quality conditions.
  136         (c)The issuance of a water quality enhancement area permit
  137  under this section does not preclude the responsibility of an
  138  applicant to obtain other applicable federal, state, and local
  139  permits for the construction activities associated with the
  140  water quality enhancement area.
  142         (a)An enhancement service area must be based on a basin
  143  management action plan or reasonable assurance plan boundary
  144  adopted by the department. If the department does not adopt a
  145  basin management action plan or reasonable assurance plan
  146  boundary, the enhancement service area must be the planning
  147  unit.
  148         (b)A water quality enhancement area may only provide
  149  enhancement credits in an enhancement service area, except for:
  150         1.Projects with adverse impacts located partially within
  151  the enhancement service area.
  152         2.Linear projects, such as roadways, transmission lines,
  153  distribution lines, pipelines, railways, or seaports listed in
  154  s. 311.09(1).
  155         3.Projects with total adverse impacts of less than 1 acre
  156  in size.
  157         (c)Once an enhancement service area has been established
  158  by the department, the enhancement service area must be accepted
  159  by all water management districts and local governments.
  160         (6)ENHANCEMENT CREDITS.—
  161         (a)The department or water management district shall
  162  authorize the sale and use of enhancement credits to offset
  163  adverse water quality impacts of activities regulated under this
  164  part or to assist entities seeking to meet an assigned basin
  165  management action plan allocation or reasonable assurance plan
  166  pursuant to s. 403.067.
  167         (b)Water quality improvement projects using natural
  168  systems or land use modifications, including, but not limited
  169  to, constructed wetlands or minor impoundments that reduce
  170  pollutants to a receiving water body, may be used by an
  171  applicant to generate enhancement credits if approved by the
  172  department.
  173         (c)The department shall provide for and maintain a ledger
  174  that tracks the award, release, and use of enhancement credits.
  175         1.The operator of a water quality enhancement area shall
  176  notify the department of the amount of enhancement credits sold
  177  or used within 30 days of the date the enhancement credit
  178  transaction is completed.
  179         2.A water management district that authorizes applicants
  180  seeking permits under this part to use enhancement credits to
  181  offset water quality impacts must report to the department the
  182  amount of enhancement credits used by the applicant.
  183         (d)Reductions in pollutant loading required under any
  184  state regulatory program are not eligible to be considered as
  185  enhancement credits.
  186         (e)Enhancement credits may not be used by point source
  187  dischargers to satisfy regulatory requirements other than those
  188  necessary to obtain an environmental resource permit for
  189  construction and operation of the surface water management
  190  system of the site.
  191         (f)Use of enhancement credits made available by water
  192  quality enhancement areas is voluntary.
  193         (g)Any landowner, discharger, or other responsible person
  194  regulated under this part or s. 403.067 implementing applicable
  195  management strategies specified in an adopted basin management
  196  action plan or reasonable assurance plan may not be required by
  197  any permit or other enforcement action to use enhancement
  198  credits to reduce pollutant loads to achieve the pollutant
  199  reductions established pursuant to s. 403.067.
  200         (h)A local government may not deny the use of enhancement
  201  credits due to the location of the water quality enhancement
  202  area outside the jurisdiction of the local government.
  203         (7)AUTHORITY.—The authority granted to the department
  204  under this section is supplemental to the authority granted
  205  under s. 403.067(8).
  206         (8)RULES.—The department shall adopt rules to implement
  207  this section.
  208         Section 2. This act shall take effect upon becoming a law.