Florida Senate - 2024                             CS for SB 1532
       By the Committee on Environment and Natural Resources; and
       Senator Brodeur
       592-02180-24                                          20241532c1
    1                        A bill to be entitled                      
    2         An act relating to mitigation; reordering and amending
    3         s. 373.403, F.S.; defining the term “private-sector
    4         sponsor”; making technical changes; amending s.
    5         373.4134, F.S.; revising legislative findings;
    6         defining the term “applicant”; revising the entities
    7         to and purposes for which water quality enhancement
    8         credits may be sold; requiring the Department of
    9         Environmental Protection or water management districts
   10         to authorize the sale and use of such credits to
   11         applicants, rather than to governmental entities, to
   12         address adverse water quality impacts of certain
   13         activities; revising construction; amending s.
   14         373.4135, F.S.; revising legislative findings;
   15         authorizing governmental entities to solicit certain
   16         proposals for mitigation bank projects on public land;
   17         providing requirements for the proposals and for
   18         agreements between local governmental and private
   19         entities; providing requirements for the agreements;
   20         providing requirements for the department and water
   21         management districts in assigning mitigation bank
   22         credits to the bank; providing applicability;
   23         providing construction; amending ss. 330.41, 373.414,
   24         and 373.461, F.S.; conforming cross-references;
   25         reenacting s. 403.9332(1)(a) and (c), F.S., relating
   26         to mitigation and enforcement, to incorporate the
   27         amendments made to s. 373.4135, F.S., in references
   28         thereto; providing an effective date.
   30  Be It Enacted by the Legislature of the State of Florida:
   32         Section 1. Section 373.403, Florida Statutes, is reordered
   33  and amended to read:
   34         373.403 Definitions.—When appearing in this part or in any
   35  rule, regulation, or order adopted pursuant thereto, the
   36  following terms mean:
   37         (4)(1) “Dam” means any artificial or natural barrier, with
   38  appurtenant works, raised to obstruct or impound, or which does
   39  obstruct or impound, any of the surface waters of the state.
   40         (2) “Appurtenant works” means any artificial improvements
   41  to a dam which might affect the safety of such dam or, when
   42  employed, might affect the holding capacity of such dam or of
   43  the reservoir or impoundment created by such dam.
   44         (10)(3) “Impoundment” means any lake, reservoir, pond, or
   45  other containment of surface water occupying a bed or depression
   46  in the earth’s surface and having a discernible shoreline.
   47         (18)(4) “Reservoir” means any artificial or natural holding
   48  area which contains or will contain the water impounded by a
   49  dam.
   50         (23)(5) “Works” means all artificial structures, including,
   51  but not limited to, ditches, canals, conduits, channels,
   52  culverts, pipes, and other construction that connects to, draws
   53  water from, drains water into, or is placed in or across the
   54  waters in the state.
   55         (3)(6) “Closed system” means any reservoir or works located
   56  entirely within agricultural lands owned or controlled by the
   57  user and which requires water only for the filling,
   58  replenishing, and maintaining the water level thereof.
   59         (1)(7) “Alter” means to extend a dam or works beyond
   60  maintenance in its original condition, including changes which
   61  may increase or diminish the flow or storage of surface water
   62  which may affect the safety of such dam or works.
   63         (12)(8) “Maintenance” or “repairs” means remedial work of a
   64  nature as may affect the safety of any dam, impoundment,
   65  reservoir, or appurtenant work or works, but excludes routine
   66  custodial maintenance.
   67         (5)(9) “Drainage basin” means a subdivision of a watershed.
   68         (21)(10) “Stormwater management system” means a system
   69  which is designed and constructed or implemented to control
   70  discharges which are necessitated by rainfall events,
   71  incorporating methods to collect, convey, store, absorb,
   72  inhibit, treat, use, or reuse water to prevent or reduce
   73  flooding, overdrainage, environmental degradation, and water
   74  pollution or otherwise affect the quantity and quality of
   75  discharges from the system.
   76         (20)(11) “State water quality standards” means water
   77  quality standards adopted pursuant to chapter 403.
   78         (22)(12) “Watershed” means the land area that which
   79  contributes to the flow of water into a receiving body of water.
   80         (6)(13) “Dredging” means excavation, by any means, in
   81  surface waters or wetlands, as delineated in s. 373.421(1). The
   82  term It also means the excavation, or creation, of a water body
   83  which is, or is to be, connected to surface waters or wetlands,
   84  as delineated in s. 373.421(1), directly or via an excavated
   85  water body or series of water bodies.
   86         (9)(14) “Filling” means the deposition, by any means, of
   87  materials in surface waters or wetlands, as delineated in s.
   88  373.421(1).
   89         (8)(15) “Estuary” means a semienclosed, naturally existing
   90  coastal body of water that which has a free connection with the
   91  open sea and within which seawater is measurably diluted with
   92  fresh water derived from riverine systems.
   93         (11)(16) “Lagoon” means a naturally existing coastal zone
   94  depression that which is below mean high water and that which
   95  has permanent or ephemeral communications with the sea, but
   96  which is protected from the sea by some type of naturally
   97  existing barrier.
   98         (19)(17) “Seawall” means a manmade wall or an encroachment,
   99  except riprap, which is made to break the force of waves and to
  100  protect the shore from erosion.
  101         (7)(18) “Ecological value” means the value of functions
  102  performed by uplands, wetlands, and other surface waters to the
  103  abundance, diversity, and habitats of fish, wildlife, and listed
  104  species. These functions include, but are not limited to,
  105  providing cover and refuge; breeding, nesting, denning, and
  106  nursery areas; corridors for wildlife movement; food chain
  107  support; and natural water storage, natural flow attenuation,
  108  and water quality improvement, which enhances fish, wildlife,
  109  and listed species utilization.
  110         (13)(19) “Mitigation bank” means a project permitted under
  111  s. 373.4136 undertaken to provide for the withdrawal of
  112  mitigation credits to offset adverse impacts authorized by a
  113  permit under this part.
  114         (14)(20) “Mitigation credit” means a standard unit of
  115  measure which represents the increase in ecological value
  116  resulting from restoration, enhancement, preservation, or
  117  creation activities.
  118         (15)(21) “Mitigation service area” means the geographic
  119  area within which mitigation credits from a mitigation bank may
  120  be used to offset adverse impacts of activities regulated under
  121  this part.
  122         (16)(22) “Offsite regional mitigation” means mitigation on
  123  an area of land off the site of an activity permitted under this
  124  part, where an applicant proposes to mitigate the adverse
  125  impacts of only the applicant’s specific activity as a
  126  requirement of the permit, which provides regional ecological
  127  value, and which is not a mitigation bank permitted under s.
  128  373.4136.
  129         (17)“Private-sector sponsor” means an individual or entity
  130  that establishes and operates a wetland mitigation bank project
  131  and is responsible for compliance with any permit or
  132  authorization, including, but not limited to, funding and
  133  undertaking wetland enhancement, restoration or creation
  134  activities, and the provision of financial assurances, as well
  135  as any required monitoring, reporting, and maintenance of the
  136  mitigation bank.
  137         Section 2. Present paragraphs (a) through (e) of subsection
  138  (2) of section 373.4134, Florida Statutes, are redesignated as
  139  paragraphs (b) through (f), respectively, a new paragraph (a) is
  140  added to that subsection, and paragraphs (b), (d), and (e) of
  141  subsection (1), paragraph (b) of subsection (3), and paragraphs
  142  (a) and (j) of subsection (7) of that section are amended, to
  143  read:
  144         373.4134 Water quality enhancement areas.—
  145         (1) LEGISLATIVE FINDINGS AND INTENT.—The Legislature finds
  146  that:
  147         (b) An expansion of existing authority for regional
  148  treatment to include offsite compensatory treatment in water
  149  quality enhancement areas to make enhancement credits available
  150  for purchase by an applicant or a governmental entity entities
  151  to address impacts regulated under this part is needed.
  152         (d) Water quality enhancement areas are a valuable tool to
  153  assist an applicant governmental entities in satisfying the net
  154  improvement performance standard under s. 373.414(1)(b)3. to
  155  ensure significant reductions of pollutant loadings.
  156         (e) Water quality enhancement areas that provide water
  157  quality enhancement credits to applicants governmental entities
  158  seeking permits under this part and to governmental entities
  159  seeking to meet an assigned basin management action plan
  160  allocation or reasonable assurance plan under s. 403.067 are
  161  considered an appropriate and permittable option.
  162         (2) DEFINITIONS.—As used in this section, the term:
  163         (a)“Applicant” means a governmental entity or private
  164  sector entity that wishes to purchase water quality enhancement
  165  credits to meet an assigned basin management action plan
  166  allocation or reasonable assurance plan or for the purpose of
  167  achieving the net improvement performance standard under s.
  168  373.414(1)(b)3.
  170         (b) Water quality enhancement credits may be sold only to
  171  governmental entities or applicants seeking to meet an assigned
  172  basin management action plan allocation or reasonable assurance
  173  plan or for the purpose of achieving net improvement performance
  174  standards under s. 373.414(1)(b)3. after the governmental entity
  175  has provided reasonable assurances have been provided for the
  176  assurance of meeting department rules for design and
  177  construction of all onsite stormwater management, as required by
  178  law.
  179         (7) ENHANCEMENT CREDITS.—
  180         (a) The department or water management district shall
  181  authorize the sale and use of enhancement credits to applicants
  182  governmental entities to address adverse water quality impacts
  183  of activities regulated under this part or to assist
  184  governmental entities seeking to meet required nonpoint source
  185  contribution reductions assigned in a basin management action
  186  plan or reasonable assurance plan under s. 403.067.
  187         (j) Notwithstanding any other law, this section does not
  188  limit or restrict the authority of the department to deny the
  189  use of enhancement credits when the department is not reasonably
  190  assured that the use of the credits will not cause or contribute
  191  to a violation of water quality standards, even if the project
  192  being implemented by the applicant governmental entity is within
  193  the enhancement service area. The department may allow the use
  194  of enhancement credits if the department receives a request for
  195  the use of enhancement credits and determines that such use will
  196  not cause or contribute to a violation of water quality
  197  standards.
  198         Section 3. Subsection (1) of section 373.4135, Florida
  199  Statutes, is amended, and subsection (8) is added to that
  200  section, to read:
  201         373.4135 Mitigation banks and offsite regional mitigation.—
  202         (1) The Legislature finds that the adverse impacts of
  203  activities regulated under this part may be offset by the
  204  creation, maintenance, and use of mitigation banks and offsite
  205  regional mitigation. Mitigation banks and offsite regional
  206  mitigation can enhance the certainty of mitigation and provide
  207  ecological value due to the improved likelihood of environmental
  208  success associated with their proper construction, maintenance,
  209  and management. Therefore, the department and the water
  210  management districts are directed to participate in and
  211  encourage the establishment of private and public mitigation
  212  banks and offsite regional mitigation on private and public
  213  lands owned by a local government. Mitigation banks and offsite
  214  regional mitigation should emphasize the restoration and
  215  enhancement of degraded ecosystems and the preservation of
  216  uplands and wetlands as intact ecosystems rather than alteration
  217  of landscapes to create wetlands. This is best accomplished
  218  through restoration of ecological communities that were
  219  historically present.
  220         (a) The Legislature intends that the provisions for
  221  establishing mitigation banks apply equally to both public and
  222  private entities, except that the rules of the department and
  223  water management districts may set forth different measures
  224  governing financial responsibility, and different measures
  225  governing legal interest, needed to ensure the construction and
  226  perpetual protection of a mitigation bank.
  227         (b) The Legislature recognizes the importance of mitigation
  228  banks as an appropriate and allowable mitigation alternative to
  229  permittee-responsible mitigation. However, the Legislature also
  230  recognizes that certain timing and geographical constraints
  231  could result in the unavailability of mitigation bank credits
  232  for a certain project upon completion of the project’s
  233  application. If state and federal mitigation credits are not
  234  available to offset the adverse impacts of a project, a local
  235  government may allow permittee-responsible mitigation consisting
  236  of the restoration or enhancement of lands purchased and owned
  237  by a local government for conservation purposes, and such
  238  mitigation must conform to the permitting requirements of s.
  239  373.4136. Except when a local government has allowed a public or
  240  private mitigation project, including permittee-responsible
  241  mitigation, to be created on land it has purchased for
  242  conservation purposes pursuant to this paragraph, a governmental
  243  entity may not create or provide mitigation for a project other
  244  than its own unless the governmental entity uses land that was
  245  not previously purchased for conservation and unless the
  246  governmental entity provides the same financial assurances as
  247  required for mitigation banks permitted under s. 373.4136. This
  248  paragraph does not apply to:
  249         1. Mitigation banks permitted before December 31, 2011,
  250  under s. 373.4136;
  251         2. Offsite regional mitigation areas established before
  252  December 31, 2011, under subsection (6) or, when credits are not
  253  available at a mitigation bank permitted under s. 373.4136,
  254  mitigation areas created by a local government which were
  255  awarded mitigation credits pursuant to the uniform mitigation
  256  assessment method as provided in chapter 62-345, Florida
  257  Administrative Code, under a permit issued before December 31,
  258  2011;
  259         3. Mitigation for transportation projects under ss.
  260  373.4137 and 373.4139;
  261         4. Mitigation for impacts from mining activities under s.
  262  373.41492;
  263         5. Mitigation provided for single-family lots or homeowners
  264  under subsection (7);
  265         6. Entities authorized in chapter 98-492, Laws of Florida;
  266         7. Mitigation provided for electric utility impacts
  267  certified under part II of chapter 403; or
  268         8. Mitigation provided on sovereign submerged lands under
  269  subsection (6).
  270         (c) It is the further intent of the Legislature that
  271  mitigation banks and offsite regional mitigation be considered
  272  appropriate and a permittable mitigation option under the
  273  conditions specified by the rules of the department and water
  274  management districts.
  275         (d) Offsite mitigation, including offsite regional
  276  mitigation, may be located outside the regional watershed in
  277  which the adverse impacts of an activity regulated under this
  278  part are located, if such adverse impacts are offset by the
  279  offsite mitigation.
  280         (e) The department or water management district may allow
  281  the use of a mitigation bank or offsite regional mitigation
  282  alone or in combination with other forms of mitigation to offset
  283  adverse impacts of activities regulated under this part.
  284         (f) When an applicant seeking for a permit under the
  285  provisions of this part other than this section and s. 373.4136
  286  submits more than one mitigation proposal to the department or a
  287  water management district, the department or water management
  288  district shall, in evaluating each proposal, ensure that such
  289  proposal adequately offsets the adverse impacts.
  290         (8)A local government may, through a public procurement
  291  process, solicit proposals from private-sector sponsors for a
  292  mitigation bank on public lands purchased for conservation
  293  purposes. If such a mitigation bank is to be established and
  294  operated on public land, the local government and private-sector
  295  sponsor must enter into an agreement requiring the private
  296  sector sponsor to establish and operate the mitigation bank to
  297  conform to the permitting requirements of s. 373.4136.
  298         (a)The agreement must require the private-sector sponsor
  299  to pay a usage fee to the local government which reflects the
  300  market value of the public land, as determined by a competitive
  301  process in accordance with state law or such other method of
  302  assuring that the cost of the use of the public land is fully
  303  accounted for in the pricing of mitigation credits.
  304         (b)In determining the number of mitigation bank credits
  305  assigned to the mitigation bank, the department or water
  306  management district shall reflect the conservation status of the
  307  land in the location factor set forth in the uniform mitigation
  308  assessment method.
  309         (c)This subsection applies to drainage basins or
  310  corresponding hydrologic units if the private-sector sponsor
  311  demonstrates to the department or water management district that
  312  in-kind credits are not available.
  313         (d)Rulemaking is not required to implement this
  314  subsection.
  315         Section 4. Paragraph (a) of subsection (2) of section
  316  330.41, Florida Statutes, is amended to read:
  317         330.41 Unmanned Aircraft Systems Act.—
  318         (2) DEFINITIONS.—As used in this act, the term:
  319         (a) “Critical infrastructure facility” means any of the
  320  following, if completely enclosed by a fence or other physical
  321  barrier that is obviously designed to exclude intruders, or if
  322  clearly marked with a sign or signs which indicate that entry is
  323  forbidden and which are posted on the property in a manner
  324  reasonably likely to come to the attention of intruders:
  325         1. A power generation or transmission facility, substation,
  326  switching station, or electrical control center.
  327         2. A chemical or rubber manufacturing or storage facility.
  328         3. A water intake structure, water treatment facility,
  329  wastewater treatment plant, or pump station.
  330         4. A mining facility.
  331         5. A natural gas or compressed gas compressor station,
  332  storage facility, or natural gas or compressed gas pipeline.
  333         6. A liquid natural gas or propane gas terminal or storage
  334  facility.
  335         7. Any portion of an aboveground oil or gas pipeline.
  336         8. A refinery.
  337         9. A gas processing plant, including a plant used in the
  338  processing, treatment, or fractionation of natural gas.
  339         10. A wireless communications facility, including the
  340  tower, antennae, support structures, and all associated ground
  341  based equipment.
  342         11. A seaport as listed in s. 311.09(1), which need not be
  343  completely enclosed by a fence or other physical barrier and
  344  need not be marked with a sign or signs indicating that entry is
  345  forbidden.
  346         12. An inland port or other facility or group of facilities
  347  serving as a point of intermodal transfer of freight in a
  348  specific area physically separated from a seaport.
  349         13. An airport as defined in s. 330.27.
  350         14. A spaceport territory as defined in s. 331.303(18).
  351         15. A military installation as defined in 10 U.S.C. s.
  352  2801(c)(4) and an armory as defined in s. 250.01.
  353         16. A dam as defined in s. 373.403 s. 373.403(1) or other
  354  structures, such as locks, floodgates, or dikes, which are
  355  designed to maintain or control the level of navigable
  356  waterways.
  357         17. A state correctional institution as defined in s.
  358  944.02 or a private correctional facility authorized under
  359  chapter 957.
  360         18. A secure detention center or facility as defined in s.
  361  985.03, or a nonsecure residential facility, a high-risk
  362  residential facility, or a maximum-risk residential facility as
  363  those terms are described in s. 985.03(44).
  364         19. A county detention facility as defined in s. 951.23.
  365         20. A critical infrastructure facility as defined in s.
  366  692.201.
  367         Section 5. Paragraph (a) of subsection (8) of section
  368  373.414, Florida Statutes, is amended to read:
  369         373.414 Additional criteria for activities in surface
  370  waters and wetlands.—
  371         (8)(a) The governing board or the department, in deciding
  372  whether to grant or deny a permit for an activity regulated
  373  under this part shall consider the cumulative impacts upon
  374  surface water and wetlands, as delineated in s. 373.421(1),
  375  within the same drainage basin as defined in s. 373.403 s.
  376  373.403(9), of:
  377         1. The activity for which the permit is sought.
  378         2. Projects which are existing or activities regulated
  379  under this part which are under construction or projects for
  380  which permits or determinations pursuant to s. 373.421 or s.
  381  403.914 have been sought.
  382         3. Activities which are under review, approved, or vested
  383  pursuant to s. 380.06, or other activities regulated under this
  384  part which may reasonably be expected to be located within
  385  surface waters or wetlands, as delineated in s. 373.421(1), in
  386  the same drainage basin as defined in s. 373.403 s. 373.403(9),
  387  based upon the comprehensive plans, adopted pursuant to chapter
  388  163, of the local governments having jurisdiction over the
  389  activities, or applicable land use restrictions and regulations.
  390         Section 6. Paragraph (c) of subsection (2) of section
  391  373.461, Florida Statutes, is amended to read:
  392         373.461 Lake Apopka improvement and management.—
  393         (2) DEFINITIONS.—As used in this section:
  394         (c) “Stormwater management system” has the meaning set
  395  forth in s. 373.403 s. 373.403(10).
  396         Section 7. For the purpose of incorporating the amendment
  397  made by this act to section 373.4135, Florida Statutes, in
  398  references thereto, paragraphs (a) and (c) of subsection (1) of
  399  section 403.9332, Florida Statutes, are reenacted to read:
  400         403.9332 Mitigation and enforcement.—
  401         (1)(a) Any area in which 5 percent or more of the trimmed
  402  mangrove trees have been trimmed below 6 feet in height, except
  403  as provided in s. 403.9326(1)(c), (d), (f), (g), and (h),
  404  destroyed, defoliated, or removed as a result of trimming
  405  conducted under s. 403.9326 or s. 403.9327 must be restored or
  406  mitigated. Restoration must be accomplished by replanting
  407  mangroves, in the same location and of the same species as each
  408  mangrove destroyed, defoliated, removed, or trimmed, to achieve
  409  within 5 years a canopy area equivalent to the area destroyed,
  410  removed, defoliated, or trimmed; or mitigation must be
  411  accomplished by replanting offsite, in areas suitable for
  412  mangrove growth, mangroves to achieve within 5 years a canopy
  413  area equivalent to the area destroyed, removed, defoliated, or
  414  trimmed. Where all or a portion of the restoration or mitigation
  415  is not practicable, as determined by the department or delegated
  416  local government, the impacts resulting from the destruction,
  417  defoliation, removal, or trimming of the mangroves must be
  418  offset by donating a sufficient amount of money to offset the
  419  impacts, which must be used for the restoration, enhancement,
  420  creation, or preservation of mangrove wetlands within a
  421  restoration, enhancement, creation, or preservation project
  422  approved by the department or delegated local government; or by
  423  purchasing credits from a mitigation bank created under s.
  424  373.4135 at a mitigation ratio of 2-to-1 credits to affected
  425  area. The donation must be equivalent to the cost, as verified
  426  by the department or delegated local government, of creating
  427  mangrove wetlands at a 2-to-1, created versus affected ratio,
  428  based on canopy area. The donation may not be less than $4 per
  429  square foot of created wetland area.
  430         (c) If mangroves are to be trimmed or altered under a
  431  permit issued under s. 403.9328, the department or delegated
  432  local government may require mitigation. The department or
  433  delegated local government shall establish reasonable mitigation
  434  requirements that must include, as an option, the use of
  435  mitigation banks created under s. 373.4135, where appropriate.
  436  The department’s mitigation requirements must ensure that
  437  payments received as mitigation are sufficient to offset impacts
  438  and are used for mangrove creation, preservation, protection, or
  439  enhancement.
  440         Section 8. This act shall take effect July 1, 2024.