Florida Senate - 2024                        COMMITTEE AMENDMENT
       Bill No. CS for SB 1532
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  02/07/2024           .                                

       The Committee on Community Affairs (Brodeur) recommended the
    1         Senate Amendment (with title amendment)
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Present paragraphs (a) through (e) of subsection
    6  (2) of section 373.4134, Florida Statutes, are redesignated as
    7  paragraphs (b) through (f), respectively, a new paragraph (a) is
    8  added to that subsection, and paragraphs (b), (d), and (e) of
    9  subsection (1), paragraph (b) of subsection (3), and paragraphs
   10  (a) and (j) of subsection (7) of that section are amended, to
   11  read:
   12         373.4134 Water quality enhancement areas.—
   13         (1) LEGISLATIVE FINDINGS AND INTENT.—The Legislature finds
   14  that:
   15         (b) An expansion of existing authority for regional
   16  treatment to include offsite compensatory treatment in water
   17  quality enhancement areas to make enhancement credits available
   18  for purchase by an applicant governmental entities to address
   19  impacts regulated under this part is needed.
   20         (d) Water quality enhancement areas are a valuable tool to
   21  assist an applicant governmental entities in satisfying the net
   22  improvement performance standard under s. 373.414(1)(b)3. to
   23  ensure significant reductions of pollutant loadings.
   24         (e) Water quality enhancement areas that provide water
   25  quality enhancement credits to applicants governmental entities
   26  seeking permits under this part and to governmental entities
   27  seeking to meet an assigned basin management action plan
   28  allocation or reasonable assurance plan under s. 403.067 are
   29  considered an appropriate and permittable option.
   30         (2) DEFINITIONS.—As used in this section, the term:
   31         (a)“Applicant” means a governmental or private sector
   32  entity that wishes to purchase water quality enhancement credits
   33  to meet an assigned basin management action plan allocation or
   34  reasonable assurance plan or for the purpose of achieving the
   35  net improvement performance standard under s. 373.414(1)(b)3.
   37         (b) Water quality enhancement credits may be sold only to
   38  applicants governmental entities seeking to meet an assigned
   39  basin management action plan allocation or reasonable assurance
   40  plan or for the purpose of achieving net improvement performance
   41  standards under s. 373.414(1)(b)3. after the governmental entity
   42  has provided reasonable assurances have been provided for the
   43  assurance of meeting department rules for design and
   44  construction of all onsite stormwater management, as required by
   45  law.
   46         (7) ENHANCEMENT CREDITS.—
   47         (a) The department or water management district shall
   48  authorize the sale and use of enhancement credits to applicants
   49  governmental entities to address adverse water quality impacts
   50  of activities regulated under this part or to assist
   51  governmental entities seeking to meet required nonpoint source
   52  contribution reductions assigned in a basin management action
   53  plan or reasonable assurance plan under s. 403.067.
   54         (j) Notwithstanding any other law, this section does not
   55  limit or restrict the authority of the department to deny the
   56  use of enhancement credits when the department is not reasonably
   57  assured that the use of the credits will not cause or contribute
   58  to a violation of water quality standards, even if the project
   59  being implemented by the applicant governmental entity is within
   60  the enhancement service area. The department may allow the use
   61  of enhancement credits if the department receives a request for
   62  the use of enhancement credits and determines that such use will
   63  not cause or contribute to a violation of water quality
   64  standards.
   65         Section 2. Subsection (1) of section 373.4135, Florida
   66  Statutes, is amended, and subsection (8) is added to that
   67  section, to read:
   68         373.4135 Mitigation banks and offsite regional mitigation.—
   69         (1) The Legislature finds that the adverse impacts of
   70  activities regulated under this part may be offset by the
   71  creation, maintenance, and use of mitigation banks and offsite
   72  regional mitigation. Mitigation banks and offsite regional
   73  mitigation can enhance the certainty of mitigation and provide
   74  ecological value due to the improved likelihood of environmental
   75  success associated with their proper construction, maintenance,
   76  and management. Therefore, the department and the water
   77  management districts are directed to participate in and
   78  encourage the establishment of private and public mitigation
   79  banks and offsite regional mitigation on lands owned by a local
   80  government, when such lands are located in a credit-deficient
   81  basin as defined in paragraph (8)(a) and the proposed mitigation
   82  bank or offsite regional mitigation would provide one or more of
   83  the deficient habitat type credits described in subparagraph
   84  (8)(a)2. Mitigation banks and offsite regional mitigation should
   85  emphasize the restoration and enhancement of degraded ecosystems
   86  and the preservation of uplands and wetlands as intact
   87  ecosystems rather than alteration of landscapes to create
   88  wetlands. This is best accomplished through restoration of
   89  ecological communities that were historically present.
   90         (a) The Legislature intends that the provisions for
   91  establishing mitigation banks apply equally to both public and
   92  private entities, except that the rules of the department and
   93  water management districts may set forth different measures
   94  governing financial responsibility, and different measures
   95  governing legal interest, needed to ensure the construction and
   96  perpetual protection of a mitigation bank.
   97         (b) The Legislature recognizes the importance of mitigation
   98  banks as an appropriate and allowable mitigation alternative to
   99  permittee-responsible mitigation. However, the Legislature also
  100  recognizes that certain timing and geographical constraints
  101  could result in the unavailability of mitigation bank credits
  102  for a certain project upon completion of the project’s
  103  application. If state and federal mitigation credits are not
  104  available to offset the adverse impacts of a project, a local
  105  government may allow permittee-responsible mitigation consisting
  106  of the restoration or enhancement of lands purchased and owned
  107  by a local government for conservation purposes, and such
  108  mitigation must conform to the permitting requirements of s.
  109  373.4136. Except when a local government has allowed a public or
  110  private mitigation project to be created on land it has
  111  purchased for conservation purposes pursuant to this paragraph,
  112  a governmental entity may not create or provide mitigation for a
  113  project other than its own unless the governmental entity uses
  114  land that was not previously purchased for conservation and
  115  unless the governmental entity provides the same financial
  116  assurances as required for mitigation banks permitted under s.
  117  373.4136. This paragraph does not apply to:
  118         1. Mitigation banks permitted before December 31, 2011,
  119  under s. 373.4136;
  120         2. Offsite regional mitigation areas established before
  121  December 31, 2011, under subsection (6) or, when credits are not
  122  available at a mitigation bank permitted under s. 373.4136,
  123  mitigation areas created by a local government which were
  124  awarded mitigation credits pursuant to the uniform mitigation
  125  assessment method as provided in chapter 62-345, Florida
  126  Administrative Code, under a permit issued before December 31,
  127  2011;
  128         3. Mitigation for transportation projects under ss.
  129  373.4137 and 373.4139;
  130         4. Mitigation for impacts from mining activities under s.
  131  373.41492;
  132         5. Mitigation provided for single-family lots or homeowners
  133  under subsection (7);
  134         6. Entities authorized in chapter 98-492, Laws of Florida;
  135         7. Mitigation provided for electric utility impacts
  136  certified under part II of chapter 403; or
  137         8. Mitigation provided on sovereign submerged lands under
  138  subsection (6).
  139         (c) It is the further intent of the Legislature that
  140  mitigation banks and offsite regional mitigation be considered
  141  appropriate and a permittable mitigation option under the
  142  conditions specified by the rules of the department and water
  143  management districts.
  144         (d) Offsite mitigation, including offsite regional
  145  mitigation, may be located outside the regional watershed in
  146  which the adverse impacts of an activity regulated under this
  147  part are located, if such adverse impacts are offset by the
  148  offsite mitigation.
  149         (e) The department or water management district may allow
  150  the use of a mitigation bank or offsite regional mitigation
  151  alone or in combination with other forms of mitigation to offset
  152  adverse impacts of activities regulated under this part.
  153         (f) When an applicant seeking for a permit under the
  154  provisions of this part other than this section and s. 373.4136
  155  submits more than one mitigation proposal to the department or a
  156  water management district, the department or water management
  157  district shall, in evaluating each proposal, ensure that such
  158  proposal adequately offsets the adverse impacts.
  159         (8)It is the intent of the Legislature to allow limited
  160  use of local government land, including lands acquired for
  161  conservation, for private sector mitigation banks, provided that
  162  the private mitigation banks are located in credit-deficient
  163  basins and would produce the habitat type credits that are
  164  unavailable or insufficient in such basins. As used in this
  165  subsection, the term “local government” includes a county,
  166  municipality, or special district as those terms are defined in
  167  s. 165.031.
  168         (a)A basin is considered to be a credit-deficient basin if
  169  it is a drainage basin or a corresponding hydrologic code, and
  170  has all of the following features:
  171         1.At least one mitigation bank has been permitted and
  172  established on lands not owned by a governmental entity, and
  173  that mitigation bank no longer has one of the habitat type
  174  credits listed in subparagraph 2. available for purchase;
  175         2.There is a documented shortage of either forested
  176  freshwater, non-forested freshwater, forested saltwater, or non
  177  forested saltwater habitat type credits; and
  178         3.Pending mitigation bank applications on private land or
  179  pending credit releases from mitigation banks on nongovernmental
  180  land are unlikely to alleviate the credit shortage.
  181         (b) A local government with land in a credit-deficient
  182  basin may, through the public procurement processes identified
  183  in chapter 287 or other established competitive procurement
  184  processes, consider a proposal from a private entity applicant
  185  for the right to establish a mitigation bank on the local
  186  government land, including such lands purchased for conservation
  187  purposes, provided acquisition encumbrances do not exist to the
  188  contrary.
  189         (c)If such a mitigation bank is to be established and
  190  operated on local government land, the local government and
  191  private applicant must enter into a use agreement that meets the
  192  requirements of this paragraph and that requires the private
  193  applicant to establish and operate the mitigation bank in
  194  conformance with the permitting requirements of s. 373.4136, and
  195  the rules adopted thereunder. The use agreement must:
  196         1.Include a requirement that the local government
  197  landowner assume the role of long-term steward of the property,
  198  and state that the landowner will grant a conservation easement
  199  or substantially similar recordable instrument pursuant to s.
  200  704.06, in favor of the permitting agency, if a conservation
  201  easement or substantially similar recordable instrument
  202  acceptable to the permitting agency does not already exist; and
  203         2.Include a requirement for the private applicant to do
  204  all of the following:
  205         a.Provide bid and performance security instruments for a
  206  minimum of 5 percent of the total bid amount, to ensure that a
  207  use agreement with the local government is executed and a
  208  mitigation bank permit is applied for by the private applicant.
  209         b.Operate and maintain the mitigation bank until final
  210  permit success criteria are met, as permitted by the department
  211  or water management district.
  212         c.Agree to establish financial assurance for long-term
  213  management in an amount agreeable to the local government
  214  landowner and as provided for in rules adopted pursuant to this
  215  section and s. 373.4136, for use by the local government as the
  216  long-term steward of the land, after the mitigation bank final
  217  environmental resource permit success criteria are met. The
  218  private sector applicant may also use an endowment to provide
  219  financial assurances.
  220         d.Acknowledge that denial of the state mitigation bank
  221  permit application will terminate the use agreement.
  222         e.Acknowledge that failure to obtain the mitigation bank
  223  permit within 2 years after the use agreement execution date
  224  will terminate the use agreement, unless it is extended for good
  225  cause by the local government.
  226         (f)Public funds may not be used to fund the financial
  227  assurances for construction and implementation of the mitigation
  228  bank or for the establishment of the long-term management
  229  financial assurances.
  230         (g)In determining the number of mitigation bank credits to
  231  be awarded to a mitigation bank established pursuant to this
  232  subsection, the proposed mitigation bank’s location in or
  233  adjacent to the local government conservation lands may not
  234  increase the uniform mitigation assessment method location
  235  factor assessment and scoring value, even if the conservation
  236  status of the mitigation bank land is improved due to such
  237  location.
  238         (h)Credit deficiency is confirmed at the time the use
  239  agreement is executed by the parties. Once confirmed, the
  240  mitigation bank application may proceed, even if the deficiency
  241  is relieved.
  242         (i)While not required, the department, in coordination
  243  with the water management districts, may adopt rules to
  244  implement this subsection.
  245         Section 3. For the purpose of incorporating the amendment
  246  made by this act to section 373.4135, Florida Statutes, in
  247  references thereto, paragraphs (a) and (c) of subsection (1) of
  248  section 403.9332, Florida Statutes, are reenacted to read:
  249         403.9332 Mitigation and enforcement.—
  250         (1)(a) Any area in which 5 percent or more of the trimmed
  251  mangrove trees have been trimmed below 6 feet in height, except
  252  as provided in s. 403.9326(1)(c), (d), (f), (g), and (h),
  253  destroyed, defoliated, or removed as a result of trimming
  254  conducted under s. 403.9326 or s. 403.9327 must be restored or
  255  mitigated. Restoration must be accomplished by replanting
  256  mangroves, in the same location and of the same species as each
  257  mangrove destroyed, defoliated, removed, or trimmed, to achieve
  258  within 5 years a canopy area equivalent to the area destroyed,
  259  removed, defoliated, or trimmed; or mitigation must be
  260  accomplished by replanting offsite, in areas suitable for
  261  mangrove growth, mangroves to achieve within 5 years a canopy
  262  area equivalent to the area destroyed, removed, defoliated, or
  263  trimmed. Where all or a portion of the restoration or mitigation
  264  is not practicable, as determined by the department or delegated
  265  local government, the impacts resulting from the destruction,
  266  defoliation, removal, or trimming of the mangroves must be
  267  offset by donating a sufficient amount of money to offset the
  268  impacts, which must be used for the restoration, enhancement,
  269  creation, or preservation of mangrove wetlands within a
  270  restoration, enhancement, creation, or preservation project
  271  approved by the department or delegated local government; or by
  272  purchasing credits from a mitigation bank created under s.
  273  373.4135 at a mitigation ratio of 2-to-1 credits to affected
  274  area. The donation must be equivalent to the cost, as verified
  275  by the department or delegated local government, of creating
  276  mangrove wetlands at a 2-to-1, created versus affected ratio,
  277  based on canopy area. The donation may not be less than $4 per
  278  square foot of created wetland area.
  279         (c) If mangroves are to be trimmed or altered under a
  280  permit issued under s. 403.9328, the department or delegated
  281  local government may require mitigation. The department or
  282  delegated local government shall establish reasonable mitigation
  283  requirements that must include, as an option, the use of
  284  mitigation banks created under s. 373.4135, where appropriate.
  285  The department’s mitigation requirements must ensure that
  286  payments received as mitigation are sufficient to offset impacts
  287  and are used for mangrove creation, preservation, protection, or
  288  enhancement.
  289         Section 4. This act shall take effect July 1, 2024.
  291  ================= T I T L E  A M E N D M E N T ================
  292  And the title is amended as follows:
  293         Delete everything before the enacting clause
  294  and insert:
  295                        A bill to be entitled                      
  296         An act relating to mitigation; amending s. 373.4134,
  297         F.S.; revising legislative findings; defining the term
  298         “applicant”; revising the entities to whom and
  299         purposes for which water quality enhancement credits
  300         may be sold; requiring the Department of Environmental
  301         Protection or water management districts to authorize
  302         the sale and use of such credits to applicants, rather
  303         than to governmental entities, to address adverse
  304         water quality impacts of certain activities; revising
  305         construction; amending s. 373.4135, F.S.; revising
  306         legislative findings; providing legislative intent;
  307         defining the term “local government”; providing
  308         circumstances under which basins are considered to be
  309         credit-deficient basins; authorizing local governments
  310         with land in credit-deficient basins to consider bids
  311         from private-sector applicants to establish mitigation
  312         banks on such lands; requiring use agreements that
  313         meet certain requirements for such mitigation banks;
  314         prohibiting the use of public funds to fund financial
  315         assurances for certain purposes; providing that
  316         specified factors may not increase the uniform
  317         mitigation assessment method location factor
  318         assessment and scoring value in determining the number
  319         of mitigation bank credits to be awarded; providing
  320         that credit deficiency is confirmed at the time of
  321         filing a permit application; authorizing the
  322         department, in coordination with the water management
  323         districts, to adopt rules; reenacting s.
  324         403.9332(1)(a) and (c), F.S., relating to mitigation
  325         and enforcement, to incorporate the amendments made to
  326         s. 373.4135, F.S., in references thereto; providing an
  327         effective date.