Florida Senate - 2024                                    SB 1532
       By Senator Brodeur
       10-01364-24                                           20241532__
    1                        A bill to be entitled                      
    2         An act relating to mitigation; reordering and amending
    3         s. 373.403, F.S.; defining the term “sponsor”; making
    4         technical changes; s. 373.4134, F.S.; revising
    5         legislative findings; revising the entities to and
    6         purposes for which water quality enhancement credits
    7         may be sold; requiring the Department of Environmental
    8         Protection or water management districts to authorize
    9         the sale and use of such credits to applicants, rather
   10         than to governmental entities, to address adverse
   11         water quality impacts of certain activities; revising
   12         construction; amending s. 373.4135, F.S.; revising
   13         legislative findings; requiring governmental entities
   14         to consider certain proposals; authorizing
   15         governmental entities to solicit proposals for
   16         mitigation bank projects on public land; providing
   17         requirements for the proposals and for agreements
   18         between local governmental and private entities;
   19         requiring the department and water management
   20         districts to consider certain factors in assigning
   21         mitigation bank credits to the bank; providing
   22         applicability; providing construction; amending ss.
   23         330.41, 373.414, and 373.461, F.S.; conforming cross
   24         references; reenacting s. 403.9332(1)(a) and (c),
   25         F.S., relating to mitigation and enforcement, to
   26         incorporate the amendments made to s. 373.4135, F.S.,
   27         in references thereto; providing an effective date.
   29  Be It Enacted by the Legislature of the State of Florida:
   31         Section 1. Section 373.403, Florida Statutes, is reordered
   32  and amended to read:
   33         373.403 Definitions.—When appearing in this part or in any
   34  rule, regulation, or order adopted pursuant thereto, the
   35  following terms mean:
   36         (4)(1) “Dam” means any artificial or natural barrier, with
   37  appurtenant works, raised to obstruct or impound, or which does
   38  obstruct or impound, any of the surface waters of the state.
   39         (2) “Appurtenant works” means any artificial improvements
   40  to a dam which might affect the safety of such dam or, when
   41  employed, might affect the holding capacity of such dam or of
   42  the reservoir or impoundment created by such dam.
   43         (10)(3) “Impoundment” means any lake, reservoir, pond, or
   44  other containment of surface water occupying a bed or depression
   45  in the earth’s surface and having a discernible shoreline.
   46         (17)(4) “Reservoir” means any artificial or natural holding
   47  area which contains or will contain the water impounded by a
   48  dam.
   49         (23)(5) “Works” means all artificial structures, including,
   50  but not limited to, ditches, canals, conduits, channels,
   51  culverts, pipes, and other construction that connects to, draws
   52  water from, drains water into, or is placed in or across the
   53  waters in the state.
   54         (3)(6) “Closed system” means any reservoir or works located
   55  entirely within agricultural lands owned or controlled by the
   56  user and which requires water only for the filling,
   57  replenishing, and maintaining the water level thereof.
   58         (1)(7) “Alter” means to extend a dam or works beyond
   59  maintenance in its original condition, including changes which
   60  may increase or diminish the flow or storage of surface water
   61  which may affect the safety of such dam or works.
   62         (12)(8) “Maintenance” or “repairs” means remedial work of a
   63  nature as may affect the safety of any dam, impoundment,
   64  reservoir, or appurtenant work or works, but excludes routine
   65  custodial maintenance.
   66         (5)(9) “Drainage basin” means a subdivision of a watershed.
   67         (21)(10) “Stormwater management system” means a system
   68  which is designed and constructed or implemented to control
   69  discharges which are necessitated by rainfall events,
   70  incorporating methods to collect, convey, store, absorb,
   71  inhibit, treat, use, or reuse water to prevent or reduce
   72  flooding, overdrainage, environmental degradation, and water
   73  pollution or otherwise affect the quantity and quality of
   74  discharges from the system.
   75         (20)(11) “State water quality standards” means water
   76  quality standards adopted pursuant to chapter 403.
   77         (22)(12) “Watershed” means the land area that which
   78  contributes to the flow of water into a receiving body of water.
   79         (6)(13) “Dredging” means excavation, by any means, in
   80  surface waters or wetlands, as delineated in s. 373.421(1). The
   81  term It also means the excavation, or creation, of a water body
   82  which is, or is to be, connected to surface waters or wetlands,
   83  as delineated in s. 373.421(1), directly or via an excavated
   84  water body or series of water bodies.
   85         (9)(14) “Filling” means the deposition, by any means, of
   86  materials in surface waters or wetlands, as delineated in s.
   87  373.421(1).
   88         (8)(15) “Estuary” means a semienclosed, naturally existing
   89  coastal body of water that which has a free connection with the
   90  open sea and within which seawater is measurably diluted with
   91  fresh water derived from riverine systems.
   92         (11)(16) “Lagoon” means a naturally existing coastal zone
   93  depression that which is below mean high water and that which
   94  has permanent or ephemeral communications with the sea, but
   95  which is protected from the sea by some type of naturally
   96  existing barrier.
   97         (18)(17) “Seawall” means a manmade wall or encroachment,
   98  except riprap, which is made to break the force of waves and to
   99  protect the shore from erosion.
  100         (19)“Sponsor” means an individual or entity that
  101  establishes and operates a wetland mitigation bank project and
  102  is responsible for compliance with any permits or
  103  authorizations, including, but not limited to, funding and
  104  undertaking wetland enhancement, restoration or creation
  105  activities, and the provision of financial assurances, as well
  106  as any required monitoring, reporting, and maintenance of the
  107  mitigation bank.
  108         (7)(18) “Ecological value” means the value of functions
  109  performed by uplands, wetlands, and other surface waters to the
  110  abundance, diversity, and habitats of fish, wildlife, and listed
  111  species. These functions include, but are not limited to,
  112  providing cover and refuge; breeding, nesting, denning, and
  113  nursery areas; corridors for wildlife movement; food chain
  114  support; and natural water storage, natural flow attenuation,
  115  and water quality improvement, which enhances fish, wildlife,
  116  and listed species utilization.
  117         (13)(19) “Mitigation bank” means a project permitted under
  118  s. 373.4136 undertaken to provide for the withdrawal of
  119  mitigation credits to offset adverse impacts authorized by a
  120  permit under this part.
  121         (14)(20) “Mitigation credit” means a standard unit of
  122  measure which represents the increase in ecological value
  123  resulting from restoration, enhancement, preservation, or
  124  creation activities.
  125         (15)(21) “Mitigation service area” means the geographic
  126  area within which mitigation credits from a mitigation bank may
  127  be used to offset adverse impacts of activities regulated under
  128  this part.
  129         (16)(22) “Offsite regional mitigation” means mitigation on
  130  an area of land off the site of an activity permitted under this
  131  part, where an applicant proposes to mitigate the adverse
  132  impacts of only the applicant’s specific activity as a
  133  requirement of the permit, which provides regional ecological
  134  value, and which is not a mitigation bank permitted under s.
  135  373.4136.
  136         Section 2. Paragraphs (b), (d), and (e) of subsection (1),
  137  paragraph (b) of subsection (3), and paragraphs (a) and (j) of
  138  subsection (7) of section 373.4134, Florida Statutes, are
  139  amended to read:
  140         373.4134 Water quality enhancement areas.—
  141         (1) LEGISLATIVE FINDINGS AND INTENT.—The Legislature finds
  142  that:
  143         (b) An expansion of existing authority for regional
  144  treatment to include offsite compensatory treatment in water
  145  quality enhancement areas to make enhancement credits available
  146  for purchase by an applicant or a governmental entity entities
  147  to address impacts regulated under this part is needed.
  148         (d) Water quality enhancement areas are a valuable tool to
  149  assist an applicant governmental entities in satisfying the net
  150  improvement performance standard under s. 373.414(1)(b)3. to
  151  ensure significant reductions of pollutant loadings.
  152         (e) Water quality enhancement areas that provide water
  153  quality enhancement credits to applicants governmental entities
  154  seeking permits under this part and to governmental entities
  155  seeking to meet an assigned basin management action plan
  156  allocation or reasonable assurance plan under s. 403.067 are
  157  considered an appropriate and permittable option.
  159         (b) Water quality enhancement credits may be sold only to
  160  governmental entities seeking to meet an assigned basin
  161  management action plan allocation or reasonable assurance plan
  162  or to applicants for the purpose of achieving the net
  163  improvement performance standard under s. 373.414(1)(b)3. after
  164  the governmental entity has provided reasonable assurances have
  165  been provided for the assurance of meeting department rules for
  166  design and construction of all onsite stormwater management
  167  required by rule 62-330, Florida Administrative Code.
  168         (7) ENHANCEMENT CREDITS.—
  169         (a) The department or water management district shall
  170  authorize the sale and use of enhancement credits to applicants
  171  governmental entities to address adverse water quality impacts
  172  of activities regulated under this part or to assist
  173  governmental entities seeking to meet required nonpoint source
  174  contribution reductions assigned in a basin management action
  175  plan or reasonable assurance plan under s. 403.067.
  176         (j) Notwithstanding any other law, this section does not
  177  limit or restrict the authority of the department to deny the
  178  use of enhancement credits when the department is not reasonably
  179  assured that the use of the credits will not cause or contribute
  180  to a violation of water quality standards, even if the project
  181  being implemented by the applicant or governmental entity is
  182  within the enhancement service area. The department may allow
  183  the use of enhancement credits if the department receives a
  184  request for the use of enhancement credits and determines that
  185  such use will not cause or contribute to a violation of water
  186  quality standards.
  187         Section 3. Subsection (1) of section 373.4135, Florida
  188  Statutes, is amended, and subsection (8) is added to that
  189  section, to read:
  190         373.4135 Mitigation banks and offsite regional mitigation.—
  191         (1) The Legislature finds that the adverse impacts of
  192  activities regulated under this part may be offset by the
  193  creation, maintenance, and use of mitigation banks and offsite
  194  regional mitigation. Mitigation banks and offsite regional
  195  mitigation can enhance the certainty of mitigation and provide
  196  ecological value due to the improved likelihood of environmental
  197  success associated with their proper construction, maintenance,
  198  and management. Therefore, the department and the water
  199  management districts are directed to participate in and
  200  encourage the establishment of private and public mitigation
  201  banks and offsite regional mitigation on private and public
  202  lands. Mitigation banks and offsite regional mitigation should
  203  emphasize the restoration and enhancement of degraded ecosystems
  204  and the preservation of uplands and wetlands as intact
  205  ecosystems rather than alteration of landscapes to create
  206  wetlands. This is best accomplished through restoration of
  207  ecological communities that were historically present.
  208         (a) The Legislature intends that the provisions for
  209  establishing mitigation banks apply equally to both public and
  210  private entities, except that the rules of the department and
  211  water management districts may set forth different measures
  212  governing financial responsibility, and different measures
  213  governing legal interest, needed to ensure the construction and
  214  perpetual protection of a mitigation bank.
  215         (b) The Legislature recognizes the importance of mitigation
  216  banks as an appropriate and allowable mitigation alternative to
  217  permittee-responsible mitigation. However, the Legislature also
  218  recognizes that certain timing and geographical constraints
  219  could result in the unavailability of mitigation bank credits
  220  for a certain project upon completion of the project’s
  221  application. If state and federal mitigation credits are not
  222  available to offset the adverse impacts of a project, a local
  223  government may allow permittee-responsible mitigation consisting
  224  of the restoration or enhancement of lands purchased and owned
  225  by a local government for conservation purposes, and such
  226  mitigation must conform to the permitting requirements of s.
  227  373.4136. Except when a local government has allowed a public or
  228  private permittee-responsible mitigation project to be created
  229  on land it has purchased for conservation purposes pursuant to
  230  this paragraph, a governmental entity may not create or provide
  231  mitigation for a project other than its own unless the
  232  governmental entity uses land that was not previously purchased
  233  for conservation and unless the governmental entity provides the
  234  same financial assurances as required for mitigation banks
  235  permitted under s. 373.4136. This paragraph does not apply to:
  236         1. Mitigation banks permitted before December 31, 2011,
  237  under s. 373.4136;
  238         2. Offsite regional mitigation areas established before
  239  December 31, 2011, under subsection (6) or, when credits are not
  240  available at a mitigation bank permitted under s. 373.4136,
  241  mitigation areas created by a local government which were
  242  awarded mitigation credits pursuant to the uniform mitigation
  243  assessment method as provided in chapter 62-345, Florida
  244  Administrative Code, under a permit issued before December 31,
  245  2011;
  246         3. Mitigation for transportation projects under ss.
  247  373.4137 and 373.4139;
  248         4. Mitigation for impacts from mining activities under s.
  249  373.41492;
  250         5. Mitigation provided for single-family lots or homeowners
  251  under subsection (7);
  252         6. Entities authorized in chapter 98-492, Laws of Florida;
  253         7. Mitigation provided for electric utility impacts
  254  certified under part II of chapter 403; or
  255         8. Mitigation provided on sovereign submerged lands under
  256  subsection (6).
  257         (c) It is the further intent of the Legislature that
  258  mitigation banks and offsite regional mitigation be considered
  259  appropriate and a permittable mitigation option under the
  260  conditions specified by the rules of the department and water
  261  management districts.
  262         (d) Offsite mitigation, including offsite regional
  263  mitigation, may be located outside the regional watershed in
  264  which the adverse impacts of an activity regulated under this
  265  part are located, if such adverse impacts are offset by the
  266  offsite mitigation.
  267         (e) The department or water management district may allow
  268  the use of a mitigation bank or offsite regional mitigation
  269  alone or in combination with other forms of mitigation to offset
  270  adverse impacts of activities regulated under this part.
  271         (f) When an applicant seeking for a permit under the
  272  provisions of this part other than this section and s. 373.4136
  273  submits more than one mitigation proposal to the department or a
  274  water management district, the department or water management
  275  district shall, in evaluating each proposal, ensure that such
  276  proposal adequately offsets the adverse impacts.
  277         (8)A governmental entity shall consider unsolicited
  278  proposals for or may solicit proposals, in accordance with s.
  279  255.065(3) or other established public procurement process, for
  280  a mitigation bank project on public land. If a mitigation bank
  281  is to be established and operated by a private entity on public
  282  land, the governmental entity and private entity must enter into
  283  an agreement requiring the private entity to serve as the
  284  sponsor of the project and the agreement must require the
  285  mitigation bank to conform to the permitting requirements of s.
  286  373.4136.
  287         (a)The agreement must require the private entity to pay a
  288  usage fee to the governmental entity which reflects the market
  289  value of the public land, as determined by a competitive process
  290  in accordance with state law or such other method of assuring
  291  that the cost of the use of the public land is fully accounted
  292  for in the pricing of mitigation credits.
  293         (b)In determining the number of mitigation bank credits
  294  assigned to the mitigation bank, the department or water
  295  management district shall reflect the conservation status of the
  296  land in the location factor set forth in the uniform mitigation
  297  assessment method.
  298         (c)This subsection applies to drainage basins or
  299  corresponding hydrologic units if the applicant demonstrates to
  300  the department or water management district that in-kind credits
  301  are not available.
  302         (d)Rulemaking is not required to implement this
  303  subsection.
  304         Section 4. Paragraph (a) of subsection (2) of section
  305  330.41, Florida Statutes, is amended to read:
  306         330.41 Unmanned Aircraft Systems Act.—
  307         (2) DEFINITIONS.—As used in this act, the term:
  308         (a) “Critical infrastructure facility” means any of the
  309  following, if completely enclosed by a fence or other physical
  310  barrier that is obviously designed to exclude intruders, or if
  311  clearly marked with a sign or signs which indicate that entry is
  312  forbidden and which are posted on the property in a manner
  313  reasonably likely to come to the attention of intruders:
  314         1. A power generation or transmission facility, substation,
  315  switching station, or electrical control center.
  316         2. A chemical or rubber manufacturing or storage facility.
  317         3. A water intake structure, water treatment facility,
  318  wastewater treatment plant, or pump station.
  319         4. A mining facility.
  320         5. A natural gas or compressed gas compressor station,
  321  storage facility, or natural gas or compressed gas pipeline.
  322         6. A liquid natural gas or propane gas terminal or storage
  323  facility.
  324         7. Any portion of an aboveground oil or gas pipeline.
  325         8. A refinery.
  326         9. A gas processing plant, including a plant used in the
  327  processing, treatment, or fractionation of natural gas.
  328         10. A wireless communications facility, including the
  329  tower, antennae, support structures, and all associated ground
  330  based equipment.
  331         11. A seaport as listed in s. 311.09(1), which need not be
  332  completely enclosed by a fence or other physical barrier and
  333  need not be marked with a sign or signs indicating that entry is
  334  forbidden.
  335         12. An inland port or other facility or group of facilities
  336  serving as a point of intermodal transfer of freight in a
  337  specific area physically separated from a seaport.
  338         13. An airport as defined in s. 330.27.
  339         14. A spaceport territory as defined in s. 331.303(18).
  340         15. A military installation as defined in 10 U.S.C. s.
  341  2801(c)(4) and an armory as defined in s. 250.01.
  342         16. A dam as defined in s. 373.403 s. 373.403(1) or other
  343  structures, such as locks, floodgates, or dikes, which are
  344  designed to maintain or control the level of navigable
  345  waterways.
  346         17. A state correctional institution as defined in s.
  347  944.02 or a private correctional facility authorized under
  348  chapter 957.
  349         18. A secure detention center or facility as defined in s.
  350  985.03, or a nonsecure residential facility, a high-risk
  351  residential facility, or a maximum-risk residential facility as
  352  those terms are described in s. 985.03(44).
  353         19. A county detention facility as defined in s. 951.23.
  354         20. A critical infrastructure facility as defined in s.
  355  692.201.
  356         Section 5. Paragraph (a) of subsection (8) of section
  357  373.414, Florida Statutes, is amended to read:
  358         373.414 Additional criteria for activities in surface
  359  waters and wetlands.—
  360         (8)(a) The governing board or the department, in deciding
  361  whether to grant or deny a permit for an activity regulated
  362  under this part shall consider the cumulative impacts upon
  363  surface water and wetlands, as delineated in s. 373.421(1),
  364  within the same drainage basin as defined in s. 373.403 s.
  365  373.403(9), of:
  366         1. The activity for which the permit is sought.
  367         2. Projects which are existing or activities regulated
  368  under this part which are under construction or projects for
  369  which permits or determinations pursuant to s. 373.421 or s.
  370  403.914 have been sought.
  371         3. Activities which are under review, approved, or vested
  372  pursuant to s. 380.06, or other activities regulated under this
  373  part which may reasonably be expected to be located within
  374  surface waters or wetlands, as delineated in s. 373.421(1), in
  375  the same drainage basin as defined in s. 373.403 s. 373.403(9),
  376  based upon the comprehensive plans, adopted pursuant to chapter
  377  163, of the local governments having jurisdiction over the
  378  activities, or applicable land use restrictions and regulations.
  379         Section 6. Paragraph (c) of subsection (2) of section
  380  373.461, Florida Statutes, is amended to read:
  381         373.461 Lake Apopka improvement and management.—
  382         (2) DEFINITIONS.—As used in this section:
  383         (c) “Stormwater management system” has the meaning set
  384  forth in s. 373.403 s. 373.403(10).
  385         Section 7. For the purpose of incorporating the amendment
  386  made by this act to section 373.4135, Florida Statutes, in
  387  references thereto, paragraphs (a) and (c) of subsection (1) of
  388  section 403.9332, Florida Statutes, are reenacted to read:
  389         403.9332 Mitigation and enforcement.—
  390         (1)(a) Any area in which 5 percent or more of the trimmed
  391  mangrove trees have been trimmed below 6 feet in height, except
  392  as provided in s. 403.9326(1)(c), (d), (f), (g), and (h),
  393  destroyed, defoliated, or removed as a result of trimming
  394  conducted under s. 403.9326 or s. 403.9327 must be restored or
  395  mitigated. Restoration must be accomplished by replanting
  396  mangroves, in the same location and of the same species as each
  397  mangrove destroyed, defoliated, removed, or trimmed, to achieve
  398  within 5 years a canopy area equivalent to the area destroyed,
  399  removed, defoliated, or trimmed; or mitigation must be
  400  accomplished by replanting offsite, in areas suitable for
  401  mangrove growth, mangroves to achieve within 5 years a canopy
  402  area equivalent to the area destroyed, removed, defoliated, or
  403  trimmed. Where all or a portion of the restoration or mitigation
  404  is not practicable, as determined by the department or delegated
  405  local government, the impacts resulting from the destruction,
  406  defoliation, removal, or trimming of the mangroves must be
  407  offset by donating a sufficient amount of money to offset the
  408  impacts, which must be used for the restoration, enhancement,
  409  creation, or preservation of mangrove wetlands within a
  410  restoration, enhancement, creation, or preservation project
  411  approved by the department or delegated local government; or by
  412  purchasing credits from a mitigation bank created under s.
  413  373.4135 at a mitigation ratio of 2-to-1 credits to affected
  414  area. The donation must be equivalent to the cost, as verified
  415  by the department or delegated local government, of creating
  416  mangrove wetlands at a 2-to-1, created versus affected ratio,
  417  based on canopy area. The donation may not be less than $4 per
  418  square foot of created wetland area.
  419         (c) If mangroves are to be trimmed or altered under a
  420  permit issued under s. 403.9328, the department or delegated
  421  local government may require mitigation. The department or
  422  delegated local government shall establish reasonable mitigation
  423  requirements that must include, as an option, the use of
  424  mitigation banks created under s. 373.4135, where appropriate.
  425  The department’s mitigation requirements must ensure that
  426  payments received as mitigation are sufficient to offset impacts
  427  and are used for mangrove creation, preservation, protection, or
  428  enhancement.
  429         Section 8. This act shall take effect July 1, 2024.