Florida Senate - 2022                             CS for SB 1426
       By the Committee on Environment and Natural Resources; and
       Senator Burgess
       592-02535-22                                          20221426c1
    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, enhancement service areas, and
    6         enhancement credits; providing requirements for water
    7         quality enhancement area permits, enhancement service
    8         areas, and enhancement credits; directing the
    9         Department of Environmental Protection and water
   10         management districts to authorize the sale and use of
   11         enhancement credits to offset certain adverse water
   12         quality impacts and to meet certain water quality
   13         requirements; providing construction; requiring the
   14         department to maintain enhancement credit ledgers;
   15         authorizing the department to adopt rules; amending s.
   16         403.061, F.S.; authorizing the department to enter
   17         into agreements and contracts with public and private
   18         entities for donations, funds, and payments to
   19         expedite the evaluation of environmental resource and
   20         dredge and fill permits; providing requirements for
   21         such agreements and contracts and permit evaluations;
   22         requiring the department to make such agreements and
   23         contracts publicly available on its website; amending
   24         s. 403.892, F.S.; correcting a cross-reference;
   25         revising the conditions that a developer or
   26         homebuilder must certify it meets as part of its
   27         application for development approval or amendment of a
   28         development order; providing applicability; requiring
   29         the department to adopt or modify specified rules, as
   30         applicable; providing requirements for such
   31         rulemaking; providing an appropriation and authorizing
   32         full-time equivalent positions; authorizing the
   33         department to increase the maximum rate of basic pay
   34         for certain positions by up to a specified percentage;
   35         providing an effective date.
   37  Be It Enacted by the Legislature of the State of Florida:
   39         Section 1. Section 373.4134, Florida Statutes, is created
   40  to read:
   41         373.4134Water quality enhancement areas.—
   42         (1)LEGISLATIVE FINDINGS AND INTENT.—The Legislature finds
   43  that:
   44         (a)Water quality will be improved and adverse water
   45  quality impacts of activities regulated under this part may be
   46  offset by the construction, operation, maintenance, and long
   47  term management of water quality enhancement areas that provide
   48  offsite compensatory treatment.
   49         (b)An expansion of existing authority for regional
   50  treatment to include offsite compensatory treatment in water
   51  quality enhancement areas to make credits available for purchase
   52  by governmental entities to offset impacts regulated under this
   53  part is needed.
   54         (c)The construction, operation, maintenance, and long-term
   55  management of water quality enhancement areas pursuant to this
   56  section will improve the certainty and long-term viability of
   57  water quality treatment systems.
   58         (d)Water quality enhancement areas are a valuable tool to
   59  assist governmental entities in satisfying the net improvement
   60  performance standard pursuant to s. 373.414(1)(b)3. to ensure
   61  significant reductions of pollutant loadings.
   62         (e)Water quality enhancement areas that provide water
   63  quality enhancement credits to governmental entities seeking
   64  permits under this part and to governmental entities seeking to
   65  meet an assigned basin management action plan allocation or
   66  reasonable assurance plan pursuant to s. 403.067 are considered
   67  an appropriate and permittable option.
   68         (2)DEFINITIONS.—As used in this section, the term:
   69         (a)“Enhancement credit” means a standard unit of measure
   70  which represents a quantity of pollutant removed.
   71         (b)“Enhancement service area” means the geographic area
   72  where the water quality enhancement area can reasonably be
   73  expected to offset adverse water quality impacts.
   74         (c)“Governmental entity” means any political subdivision
   75  of this state, including any state agency, department, county,
   76  municipality, special district, school district, utility
   77  authority, or other authority or instrumentality, agency, unit,
   78  or department thereof.
   79         (d)“Planning unit” means the total maximum daily load
   80  planning unit that is an individual tributary basin or a group
   81  of smaller adjacent tributary basins with similar
   82  characteristics.
   83         (e)“Water quality enhancement area” means a natural system
   84  constructed, operated, managed, and maintained pursuant to a
   85  permit issued under this section for the purpose of providing
   86  offsite, compensatory, regional treatment within an identified
   87  enhancement service area, for which enhancement credits may be
   88  provided.
   89         (f)“Water quality enhancement area permit” means a permit
   90  issued for a water quality enhancement area which authorizes the
   91  construction, operation, management, and maintenance of the area
   92  and the purchase and sale of enhancement credits.
   94         (a)The construction, operation, management, and
   95  maintenance of a water quality enhancement area must be approved
   96  through the environmental resource permitting process.
   97  Department rules pertaining to environmental resource permits
   98  apply to water quality enhancement areas and enhancement
   99  credits.
  100         (b)Water quality enhancement credits may be sold only to
  101  governmental entities.
  102         (c)A water quality enhancement area must address
  103  contributions of pollutants for those parameters in an
  104  enhancement service area which do not meet state water quality
  105  standards.
  106         (d)A water quality enhancement area must use, create, or
  107  improve natural systems in order to improve water quality.
  108         (e)A governmental entity may use a water quality
  109  enhancement area for its own water quality needs. However, a
  110  governmental entity may not act as a sponsor to construct,
  111  operate, manage, maintain, or market enhancement credits to
  112  third parties.
  113         (f)A local government may not require a permit or
  114  otherwise impose regulations governing the operation of a water
  115  quality enhancement area.
  117         (a)To obtain a water quality enhancement area permit, the
  118  applicant must provide reasonable assurances that the proposed
  119  water quality enhancement area will:
  120         1.Meet the requirements for issuance of an environmental
  121  resource permit.
  122         2.Benefit water quality in the enhancement service area.
  123         3.Achieve defined performance or success criteria for the
  124  reduction of pollutants or other constituents that prevent
  125  receiving waters from meeting state water quality standards.
  126         4.Assure long-term pollutant reduction through effective
  127  operation and maintenance in perpetuity by designation of a
  128  responsible long-term maintenance entity supported by an
  129  endowment or other long-term financial assurance sufficient to
  130  assure perpetual maintenance.
  131         5.Demonstrate sufficient legal or equitable interest in
  132  the property to ensure access and perpetual protection and
  133  management of the land within the water quality enhancement
  134  area.
  135         6.Provide for permanent preservation of the site pursuant
  136  to s. 704.06.
  137         (b)The water quality enhancement area permit must provide
  138  for the assessment, valuation, and award of credits based on
  139  units of pollutant removed. To assist the department in
  140  determining enhancement credits, a water quality enhancement
  141  area application must include the following information:
  142         1.Rainfall data over the longest period of record
  143  available, collected from the closest site to the proposed water
  144  quality enhancement area, preferably within the same drainage
  145  basin.
  146         2.Anticipated average annual water quality and quantity
  147  inflows to the proposed water quality enhancement area, based on
  148  published local data collected over a period of record that most
  149  closely matches the rainfall data under this paragraph.
  150         3.Site-specific conditions affecting the anticipated
  151  performance of the proposed water quality enhancement area,
  152  including the proposed treatment type and anticipated associated
  153  reduction rates, as demonstrated by the performance of other
  154  areas where the treatment type has been established and
  155  operating over a minimum of two consecutive wet and dry seasons.
  156         4.Data from collection stations approved in advance by the
  157  department in sites that the department deems sufficient to
  158  determine flows and local water quality conditions.
  159         (c)The issuance of a water quality enhancement area permit
  160  under this section does not preclude the responsibility of an
  161  applicant to obtain other applicable federal, state, and local
  162  permits for the construction activities associated with the
  163  water quality enhancement area.
  165         (a)An enhancement service area must be based on a basin
  166  management action plan or reasonable assurance plan boundary
  167  adopted by the department. If the department does not adopt a
  168  basin management action plan or reasonable assurance plan
  169  boundary, the enhancement service area must be the planning
  170  unit.
  171         (b)A water quality enhancement area may provide
  172  enhancement credits only in an enhancement service area, except
  173  for:
  174         1.Projects with adverse impacts located partially within
  175  the enhancement service area.
  176         2.Linear projects, such as roadways, transmission lines,
  177  distribution lines, pipelines, railways, or seaports listed in
  178  s. 311.09(1).
  179         (c)Once an enhancement service area has been established
  180  by the department, the enhancement service area must be accepted
  181  by all water management districts and local governments.
  182         (6)ENHANCEMENT CREDITS.—
  183         (a)The department or water management district shall
  184  authorize the sale and use of enhancement credits to
  185  governmental entities to offset adverse water quality impacts of
  186  activities regulated under this part or to assist governmental
  187  entities seeking to meet an assigned basin management action
  188  plan allocation or reasonable assurance plan pursuant to s.
  189  403.067.
  190         (b)Water quality improvement projects using natural
  191  systems or land use modifications, including, but not limited
  192  to, constructed wetlands or minor impoundments that reduce
  193  pollutants to a receiving water body, may be used by an
  194  applicant to generate enhancement credits if approved by the
  195  department.
  196         (c)The department shall provide for and maintain a ledger
  197  that tracks the award, release, and use of enhancement credits.
  198         1.The operator of a water quality enhancement area shall
  199  notify the department of the amount of enhancement credits sold
  200  or used within 30 days of the date the enhancement credit
  201  transaction is completed.
  202         2.A water management district that authorizes applicants
  203  seeking permits under this part to use enhancement credits to
  204  offset water quality impacts must report to the department the
  205  amount of enhancement credits used by the applicant.
  206         (d)Reductions in pollutant loading required under any
  207  state regulatory program are not eligible to be considered as
  208  enhancement credits.
  209         (e)Enhancement credits may not be used by point source
  210  dischargers to satisfy regulatory requirements other than those
  211  necessary to obtain an environmental resource permit for
  212  construction and operation of the surface water management
  213  system of the site.
  214         (f)Use of enhancement credits made available by water
  215  quality enhancement areas is voluntary.
  216         (g)Any landowner, discharger, or other responsible person
  217  regulated under this part or s. 403.067 implementing applicable
  218  management strategies specified in an adopted basin management
  219  action plan or reasonable assurance plan may not be required by
  220  any permit or other enforcement action to use enhancement
  221  credits to reduce pollutant loads to achieve the pollutant
  222  reductions established pursuant to s. 403.067.
  223         (h)A local government may not deny the use of enhancement
  224  credits due to the location of the water quality enhancement
  225  area outside the jurisdiction of the local government.
  226         (7)AUTHORITY.—The authority granted to the department
  227  under this section is supplemental to the authority granted
  228  under s. 403.067(8).
  229         (8)RULES.—The department may adopt rules to implement this
  230  section.
  231         Section 2. Subsection (22) of section 403.061, Florida
  232  Statutes, is amended to read:
  233         403.061 Department; powers and duties.—The department shall
  234  have the power and the duty to control and prohibit pollution of
  235  air and water in accordance with the law and rules adopted and
  236  promulgated by it and, for this purpose, to:
  237         (22)(a) Advise, consult, cooperate, and enter into
  238  agreements and contracts with other agencies of the state, the
  239  Federal Government, other states, interstate agencies, groups,
  240  political subdivisions, and industries affected by the
  241  provisions of this act, rules, or policies of the department.
  242  However, the secretary of the department shall not enter into
  243  any interstate agreement relating to the transport of ozone
  244  precursor pollutants, nor modify its rules based upon a
  245  recommendation from the Ozone Transport Assessment Group or any
  246  other such organization that is not an official subdivision of
  247  the United States Environmental Protection Agency but which
  248  studies issues related to the transport of ozone precursor
  249  pollutants, without prior review and specific legislative
  250  approval.
  251         (b)Enter into agreements and contracts with public or
  252  private entities to accept and expend donations, grants of
  253  funds, and payments to expedite the evaluation of the entity’s
  254  application for a permit under s. 373.4131 or s. 373.4146. Such
  255  agreements and contracts must be effective for at least 3 years.
  256  Permit evaluations under this paragraph must follow the same
  257  permit application evaluation procedures as those for an entity
  258  that does not have an agreement or a contract with the
  259  department. The department shall ensure that agreements and
  260  contracts entered into under this paragraph do not substantively
  261  or procedurally affect the impartial evaluation of the entity’s
  262  permit application. Such active agreements and contracts must be
  263  posted on the department’s website.
  265  The department shall implement such programs in conjunction with
  266  its other powers and duties and shall place special emphasis on
  267  reducing and eliminating contamination that presents a threat to
  268  humans, animals or plants, or to the environment.
  269         Section 3. Paragraph (b) of subsection (1) and paragraphs
  270  (a), (b), and (d) of subsection (3) of section 403.892, Florida
  271  Statutes, are amended, and subsection (6) is added to that
  272  section, to read:
  273         403.892 Incentives for the use of graywater technologies.—
  274         (1) As used in this section, the term:
  275         (b) “Graywater” has the same meaning as in s.
  276  381.0065(2)(f) s. 381.0065(2)(e).
  277         (3) To qualify for the incentives under subsection (2), the
  278  developer or homebuilder must certify to the applicable
  279  governmental entity as part of its application for development
  280  approval or amendment of a development order that all of the
  281  following conditions are met:
  282         (a) The proposed or existing development has at least 25
  283  single-family residential homes that are either detached or
  284  multifamily dwellings. This paragraph does not apply to
  285  multifamily projects over five stories in height.
  286         (b) Each single-family residential home or residence will
  287  have its own residential graywater system that is dedicated for
  288  its use. Each residence forming part of a multifamily project
  289  will be serviced by either its own residential graywater system
  290  dedicated for its use or a master graywater collection and reuse
  291  system for the entire project.
  292         (d) The required maintenance of the graywater system will
  293  be the responsibility of the owner residential homeowner.
  294         (6)This section does not apply to multifamily projects
  295  more than five stories in height. Whether a dwelling is occupied
  296  by an owner is not an eligibility criterion for a developer or
  297  homebuilder to receive the incentives authorized pursuant to
  298  this section.
  299         Section 4. The Department of Environmental Protection shall
  300  adopt and modify rules adopted pursuant to ss. 373.4136 and
  301  373.414, Florida Statutes, to ensure that required financial
  302  assurances are equivalent and sufficient to provide for the
  303  long-term management of mitigation permitted under ss. 373.4136
  304  and 373.414, Florida Statutes. The department, in consultation
  305  with the water management districts, shall include the
  306  rulemaking required by this section in existing active
  307  rulemaking or shall complete rule development by June 30, 2023.
  308         Section 5. Effective July 1, 2022, the sum of $2.04 million
  309  in recurring funds from the Grants and Donations Trust Fund is
  310  appropriated to the Department of Environmental Protection, and
  311  24 full-time equivalent positions are authorized, to evaluate
  312  applications for permits issued under ss. 373.4131 and 373.4146,
  313  Florida Statutes, for entities with which the department has
  314  entered into agreements or contracts under s. 403.061(22),
  315  Florida Statutes. To obtain and retain such positions, the
  316  department may increase the maximum rate of basic pay up to 30
  317  percent for each position.
  318         Section 6. This act shall take effect upon becoming a law.