Florida Senate - 2024                      CS for CS for SB 1532
       By the Committees on Community Affairs; and Environment and
       Natural Resources; and Senator Brodeur
       578-03036-24                                          20241532c2
    1                        A bill to be entitled                      
    2         An act relating to mitigation; amending s. 373.4134,
    3         F.S.; revising legislative findings; defining the term
    4         “applicant”; revising the entities to whom and
    5         purposes for which water quality enhancement credits
    6         may be sold; requiring the Department of Environmental
    7         Protection or water management districts to authorize
    8         the sale and use of such credits to applicants, rather
    9         than to governmental entities, to address adverse
   10         water quality impacts of certain activities; revising
   11         construction; amending s. 373.4135, F.S.; revising
   12         legislative findings; providing legislative intent;
   13         defining the term “local government”; providing
   14         circumstances under which basins are considered to be
   15         credit-deficient basins; authorizing local governments
   16         with land in credit-deficient basins to consider bids
   17         from private-sector applicants to establish mitigation
   18         banks on such lands; requiring use agreements that
   19         meet certain requirements for such mitigation banks;
   20         prohibiting the use of public funds to fund financial
   21         assurances for certain purposes; providing that
   22         specified factors may not increase the uniform
   23         mitigation assessment method location factor
   24         assessment and scoring value in determining the number
   25         of mitigation bank credits to be awarded; providing
   26         that credit deficiency is confirmed at the time of
   27         filing a permit application; authorizing the
   28         department, in coordination with the water management
   29         districts, to adopt rules; reenacting s.
   30         403.9332(1)(a) and (c), F.S., relating to mitigation
   31         and enforcement, to incorporate the amendments made to
   32         s. 373.4135, F.S., in references thereto; providing an
   33         effective date.
   35  Be It Enacted by the Legislature of the State of Florida:
   37         Section 1. Present paragraphs (a) through (e) of subsection
   38  (2) of section 373.4134, Florida Statutes, are redesignated as
   39  paragraphs (b) through (f), respectively, a new paragraph (a) is
   40  added to that subsection, and paragraphs (b), (d), and (e) of
   41  subsection (1), paragraph (b) of subsection (3), and paragraphs
   42  (a) and (j) of subsection (7) of that section are amended, to
   43  read:
   44         373.4134 Water quality enhancement areas.—
   45         (1) LEGISLATIVE FINDINGS AND INTENT.—The Legislature finds
   46  that:
   47         (b) An expansion of existing authority for regional
   48  treatment to include offsite compensatory treatment in water
   49  quality enhancement areas to make enhancement credits available
   50  for purchase by an applicant governmental entities to address
   51  impacts regulated under this part is needed.
   52         (d) Water quality enhancement areas are a valuable tool to
   53  assist an applicant governmental entities in satisfying the net
   54  improvement performance standard under s. 373.414(1)(b)3. to
   55  ensure significant reductions of pollutant loadings.
   56         (e) Water quality enhancement areas that provide water
   57  quality enhancement credits to applicants governmental entities
   58  seeking permits under this part and to governmental entities
   59  seeking to meet an assigned basin management action plan
   60  allocation or reasonable assurance plan under s. 403.067 are
   61  considered an appropriate and permittable option.
   62         (2) DEFINITIONS.—As used in this section, the term:
   63         (a)“Applicant” means a governmental or private sector
   64  entity that wishes to purchase water quality enhancement credits
   65  to meet an assigned basin management action plan allocation or
   66  reasonable assurance plan or for the purpose of achieving the
   67  net improvement performance standard under s. 373.414(1)(b)3.
   69         (b) Water quality enhancement credits may be sold only to
   70  applicants governmental entities seeking to meet an assigned
   71  basin management action plan allocation or reasonable assurance
   72  plan or for the purpose of achieving net improvement performance
   73  standards under s. 373.414(1)(b)3. after the governmental entity
   74  has provided reasonable assurances have been provided for the
   75  assurance of meeting department rules for design and
   76  construction of all onsite stormwater management, as required by
   77  law.
   78         (7) ENHANCEMENT CREDITS.—
   79         (a) The department or water management district shall
   80  authorize the sale and use of enhancement credits to applicants
   81  governmental entities to address adverse water quality impacts
   82  of activities regulated under this part or to assist
   83  governmental entities seeking to meet required nonpoint source
   84  contribution reductions assigned in a basin management action
   85  plan or reasonable assurance plan under s. 403.067.
   86         (j) Notwithstanding any other law, this section does not
   87  limit or restrict the authority of the department to deny the
   88  use of enhancement credits when the department is not reasonably
   89  assured that the use of the credits will not cause or contribute
   90  to a violation of water quality standards, even if the project
   91  being implemented by the applicant governmental entity is within
   92  the enhancement service area. The department may allow the use
   93  of enhancement credits if the department receives a request for
   94  the use of enhancement credits and determines that such use will
   95  not cause or contribute to a violation of water quality
   96  standards.
   97         Section 2. Subsection (1) of section 373.4135, Florida
   98  Statutes, is amended, and subsection (8) is added to that
   99  section, to read:
  100         373.4135 Mitigation banks and offsite regional mitigation.—
  101         (1) The Legislature finds that the adverse impacts of
  102  activities regulated under this part may be offset by the
  103  creation, maintenance, and use of mitigation banks and offsite
  104  regional mitigation. Mitigation banks and offsite regional
  105  mitigation can enhance the certainty of mitigation and provide
  106  ecological value due to the improved likelihood of environmental
  107  success associated with their proper construction, maintenance,
  108  and management. Therefore, the department and the water
  109  management districts are directed to participate in and
  110  encourage the establishment of private and public mitigation
  111  banks and offsite regional mitigation on lands owned by a local
  112  government, when such lands are located in a credit-deficient
  113  basin as defined in paragraph (8)(a) and the proposed mitigation
  114  bank or offsite regional mitigation would provide one or more of
  115  the deficient habitat type credits described in subparagraph
  116  (8)(a)2. Mitigation banks and offsite regional mitigation should
  117  emphasize the restoration and enhancement of degraded ecosystems
  118  and the preservation of uplands and wetlands as intact
  119  ecosystems rather than alteration of landscapes to create
  120  wetlands. This is best accomplished through restoration of
  121  ecological communities that were historically present.
  122         (a) The Legislature intends that the provisions for
  123  establishing mitigation banks apply equally to both public and
  124  private entities, except that the rules of the department and
  125  water management districts may set forth different measures
  126  governing financial responsibility, and different measures
  127  governing legal interest, needed to ensure the construction and
  128  perpetual protection of a mitigation bank.
  129         (b) The Legislature recognizes the importance of mitigation
  130  banks as an appropriate and allowable mitigation alternative to
  131  permittee-responsible mitigation. However, the Legislature also
  132  recognizes that certain timing and geographical constraints
  133  could result in the unavailability of mitigation bank credits
  134  for a certain project upon completion of the project’s
  135  application. If state and federal mitigation credits are not
  136  available to offset the adverse impacts of a project, a local
  137  government may allow permittee-responsible mitigation consisting
  138  of the restoration or enhancement of lands purchased and owned
  139  by a local government for conservation purposes, and such
  140  mitigation must conform to the permitting requirements of s.
  141  373.4136. Except when a local government has allowed a public or
  142  private mitigation project to be created on land it has
  143  purchased for conservation purposes pursuant to this paragraph,
  144  a governmental entity may not create or provide mitigation for a
  145  project other than its own unless the governmental entity uses
  146  land that was not previously purchased for conservation and
  147  unless the governmental entity provides the same financial
  148  assurances as required for mitigation banks permitted under s.
  149  373.4136. This paragraph does not apply to:
  150         1. Mitigation banks permitted before December 31, 2011,
  151  under s. 373.4136;
  152         2. Offsite regional mitigation areas established before
  153  December 31, 2011, under subsection (6) or, when credits are not
  154  available at a mitigation bank permitted under s. 373.4136,
  155  mitigation areas created by a local government which were
  156  awarded mitigation credits pursuant to the uniform mitigation
  157  assessment method as provided in chapter 62-345, Florida
  158  Administrative Code, under a permit issued before December 31,
  159  2011;
  160         3. Mitigation for transportation projects under ss.
  161  373.4137 and 373.4139;
  162         4. Mitigation for impacts from mining activities under s.
  163  373.41492;
  164         5. Mitigation provided for single-family lots or homeowners
  165  under subsection (7);
  166         6. Entities authorized in chapter 98-492, Laws of Florida;
  167         7. Mitigation provided for electric utility impacts
  168  certified under part II of chapter 403; or
  169         8. Mitigation provided on sovereign submerged lands under
  170  subsection (6).
  171         (c) It is the further intent of the Legislature that
  172  mitigation banks and offsite regional mitigation be considered
  173  appropriate and a permittable mitigation option under the
  174  conditions specified by the rules of the department and water
  175  management districts.
  176         (d) Offsite mitigation, including offsite regional
  177  mitigation, may be located outside the regional watershed in
  178  which the adverse impacts of an activity regulated under this
  179  part are located, if such adverse impacts are offset by the
  180  offsite mitigation.
  181         (e) The department or water management district may allow
  182  the use of a mitigation bank or offsite regional mitigation
  183  alone or in combination with other forms of mitigation to offset
  184  adverse impacts of activities regulated under this part.
  185         (f) When an applicant seeking for a permit under the
  186  provisions of this part other than this section and s. 373.4136
  187  submits more than one mitigation proposal to the department or a
  188  water management district, the department or water management
  189  district shall, in evaluating each proposal, ensure that such
  190  proposal adequately offsets the adverse impacts.
  191         (8)It is the intent of the Legislature to allow limited
  192  use of local government land, including lands acquired for
  193  conservation, for private sector mitigation banks, provided that
  194  the private mitigation banks are located in credit-deficient
  195  basins and would produce the habitat type credits that are
  196  unavailable or insufficient in such basins. As used in this
  197  subsection, the term “local government” includes a county,
  198  municipality, or special district as those terms are defined in
  199  s. 165.031.
  200         (a)A basin is considered to be a credit-deficient basin if
  201  it is a drainage basin or a corresponding hydrologic code, and
  202  has all of the following features:
  203         1.At least one mitigation bank has been permitted and
  204  established on lands not owned by a governmental entity, and
  205  that mitigation bank no longer has one of the habitat type
  206  credits listed in subparagraph 2. available for purchase;
  207         2.There is a documented shortage of either forested
  208  freshwater, non-forested freshwater, forested saltwater, or non
  209  forested saltwater habitat type credits; and
  210         3.Pending mitigation bank applications on private land or
  211  pending credit releases from mitigation banks on nongovernmental
  212  land are unlikely to alleviate the credit shortage.
  213         (b) A local government with land in a credit-deficient
  214  basin may, through the public procurement processes identified
  215  in chapter 287 or other established competitive procurement
  216  processes, consider a proposal from a private entity applicant
  217  for the right to establish a mitigation bank on the local
  218  government land, including such lands purchased for conservation
  219  purposes, provided acquisition encumbrances do not exist to the
  220  contrary.
  221         (c)If such a mitigation bank is to be established and
  222  operated on local government land, the local government and
  223  private applicant must enter into a use agreement that meets the
  224  requirements of this paragraph and that requires the private
  225  applicant to establish and operate the mitigation bank in
  226  conformance with the permitting requirements of s. 373.4136, and
  227  the rules adopted thereunder. The use agreement must:
  228         1.Include a requirement that the local government
  229  landowner assume the role of long-term steward of the property,
  230  and state that the landowner will grant a conservation easement
  231  or substantially similar recordable instrument pursuant to s.
  232  704.06, in favor of the permitting agency, if a conservation
  233  easement or substantially similar recordable instrument
  234  acceptable to the permitting agency does not already exist; and
  235         2.Include a requirement for the private applicant to do
  236  all of the following:
  237         a.Provide bid and performance security instruments for a
  238  minimum of 5 percent of the total bid amount, to ensure that a
  239  use agreement with the local government is executed and a
  240  mitigation bank permit is applied for by the private applicant.
  241         b.Operate and maintain the mitigation bank until final
  242  permit success criteria are met, as permitted by the department
  243  or water management district.
  244         c.Agree to establish financial assurance for long-term
  245  management in an amount agreeable to the local government
  246  landowner and as provided for in rules adopted pursuant to this
  247  section and s. 373.4136, for use by the local government as the
  248  long-term steward of the land, after the mitigation bank final
  249  environmental resource permit success criteria are met. The
  250  private sector applicant may also use an endowment to provide
  251  financial assurances.
  252         d.Acknowledge that denial of the state mitigation bank
  253  permit application will terminate the use agreement.
  254         e.Acknowledge that failure to obtain the mitigation bank
  255  permit within 2 years after the use agreement execution date
  256  will terminate the use agreement, unless it is extended for good
  257  cause by the local government.
  258         (f)Public funds may not be used to fund the financial
  259  assurances for construction and implementation of the mitigation
  260  bank or for the establishment of the long-term management
  261  financial assurances.
  262         (g)In determining the number of mitigation bank credits to
  263  be awarded to a mitigation bank established pursuant to this
  264  subsection, the proposed mitigation bank’s location in or
  265  adjacent to the local government conservation lands may not
  266  increase the uniform mitigation assessment method location
  267  factor assessment and scoring value, even if the conservation
  268  status of the mitigation bank land is improved due to such
  269  location.
  270         (h)Credit deficiency is confirmed at the time the use
  271  agreement is executed by the parties. Once confirmed, the
  272  mitigation bank application may proceed, even if the deficiency
  273  is relieved.
  274         (i)While not required, the department, in coordination
  275  with the water management districts, may adopt rules to
  276  implement this subsection.
  277         Section 3. For the purpose of incorporating the amendment
  278  made by this act to section 373.4135, Florida Statutes, in
  279  references thereto, paragraphs (a) and (c) of subsection (1) of
  280  section 403.9332, Florida Statutes, are reenacted to read:
  281         403.9332 Mitigation and enforcement.—
  282         (1)(a) Any area in which 5 percent or more of the trimmed
  283  mangrove trees have been trimmed below 6 feet in height, except
  284  as provided in s. 403.9326(1)(c), (d), (f), (g), and (h),
  285  destroyed, defoliated, or removed as a result of trimming
  286  conducted under s. 403.9326 or s. 403.9327 must be restored or
  287  mitigated. Restoration must be accomplished by replanting
  288  mangroves, in the same location and of the same species as each
  289  mangrove destroyed, defoliated, removed, or trimmed, to achieve
  290  within 5 years a canopy area equivalent to the area destroyed,
  291  removed, defoliated, or trimmed; or mitigation must be
  292  accomplished by replanting offsite, in areas suitable for
  293  mangrove growth, mangroves to achieve within 5 years a canopy
  294  area equivalent to the area destroyed, removed, defoliated, or
  295  trimmed. Where all or a portion of the restoration or mitigation
  296  is not practicable, as determined by the department or delegated
  297  local government, the impacts resulting from the destruction,
  298  defoliation, removal, or trimming of the mangroves must be
  299  offset by donating a sufficient amount of money to offset the
  300  impacts, which must be used for the restoration, enhancement,
  301  creation, or preservation of mangrove wetlands within a
  302  restoration, enhancement, creation, or preservation project
  303  approved by the department or delegated local government; or by
  304  purchasing credits from a mitigation bank created under s.
  305  373.4135 at a mitigation ratio of 2-to-1 credits to affected
  306  area. The donation must be equivalent to the cost, as verified
  307  by the department or delegated local government, of creating
  308  mangrove wetlands at a 2-to-1, created versus affected ratio,
  309  based on canopy area. The donation may not be less than $4 per
  310  square foot of created wetland area.
  311         (c) If mangroves are to be trimmed or altered under a
  312  permit issued under s. 403.9328, the department or delegated
  313  local government may require mitigation. The department or
  314  delegated local government shall establish reasonable mitigation
  315  requirements that must include, as an option, the use of
  316  mitigation banks created under s. 373.4135, where appropriate.
  317  The department’s mitigation requirements must ensure that
  318  payments received as mitigation are sufficient to offset impacts
  319  and are used for mangrove creation, preservation, protection, or
  320  enhancement.
  321         Section 4. This act shall take effect July 1, 2024.