2024 Legislature                    CS for CS for CS for SB 1532
    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         applicability; providing circumstances under which
   15         basins are considered to be credit-deficient basins;
   16         authorizing local governments with land in credit
   17         deficient basins to consider bids from private-sector
   18         applicants to establish mitigation banks on such
   19         lands; requiring use agreements that meet certain
   20         requirements for such mitigation banks; prohibiting
   21         the use of public funds to fund financial assurances
   22         for certain purposes; providing that specified factors
   23         may not increase the uniform mitigation assessment
   24         method location factor assessment and scoring value in
   25         determining the number of mitigation bank credits to
   26         be awarded; providing that credit deficiency is
   27         confirmed at the time of filing a permit application;
   28         authorizing the department, in coordination with the
   29         water management districts, to adopt rules; reenacting
   30         s. 403.9332(1)(a) and (c), F.S., relating to
   31         mitigation and enforcement, to incorporate the
   32         amendments made to s. 373.4135, F.S., in references
   33         thereto; providing an 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), paragraphs (b) and (c) of subsection (3), and
   42  paragraphs (a) and (j) of subsection (7) of that section are
   43  amended, to 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 or a governmental entity entities
   51  to address impacts regulated under ss. 373.403-373.443 this part
   52  is needed.
   53         (d) Water quality enhancement areas are a valuable tool to
   54  assist an applicant governmental entities in providing a
   55  satisfying the net improvement of the water quality in a
   56  receiving waterbody that does not meet standards or in
   57  satisfying the environmental resource permit performance
   58  standard under s. 373.414(1)(b)3. to ensure significant
   59  reductions of pollutant loadings.
   60         (e) Water quality enhancement areas that provide water
   61  quality enhancement credits to applicants governmental entities
   62  seeking permits under ss. 373.403-373.443 this part and to
   63  governmental entities seeking to meet an assigned basin
   64  management action plan allocation or reasonable assurance plan
   65  under s. 403.067 are considered an appropriate and permittable
   66  option.
   67         (2) DEFINITIONS.—As used in this section, the term:
   68         (a)“Applicant” means a governmental entity that seeks to
   69  purchase water quality enhancement credits to meet an assigned
   70  basin management action plan allocation or reasonable assurance
   71  plan or a governmental entity or a private sector entity that
   72  seeks to purchase water quality enhancement credits for the
   73  purpose of achieving net improvement under s. 373.414(1)(b)3. or
   74  satisfying environmental resource permit performance standards.
   76         (b) Water quality enhancement credits may be sold only to
   77  governmental entities seeking to meet an assigned basin
   78  management action plan allocation or reasonable assurance plan
   79  or to applicants for the purpose of achieving net improvement or
   80  meeting environmental resource permit performance standards
   81  under s. 373.414(1)(b)3. after the governmental entity has
   82  provided reasonable assurances have been provided for the
   83  assurance of meeting department rules for design and
   84  construction of all onsite stormwater management, as required by
   85  law.
   86         (c) A water quality enhancement area must be used to
   87  address contributions of one or more pollutants or other
   88  constituents in the watershed, basin, sub-basin, targeted
   89  restoration area, waterbody, or section of waterbody, as
   90  determined by the department, in which the water quality
   91  enhancement area is located that do not meet applicable state
   92  water quality standards or environmental resource permit
   93  performance standards criteria.
   94         (7) ENHANCEMENT CREDITS.—
   95         (a) The department or water management district shall
   96  authorize the sale and use of enhancement credits to applicants
   97  governmental entities to address adverse water quality impacts
   98  of activities regulated under ss. 373.403-373.443 this part or
   99  to assist governmental entities seeking to meet required
  100  nonpoint source contribution reductions assigned in a basin
  101  management action plan or reasonable assurance plan under s.
  102  403.067.
  103         (j) Notwithstanding any other law, this section does not
  104  limit or restrict the authority of the department to deny the
  105  use of enhancement credits when the department is not reasonably
  106  assured that the use of the credits will not cause or contribute
  107  to a violation of water quality standards, even if the project
  108  being implemented by the applicant governmental entity is within
  109  the enhancement service area. The department may allow the use
  110  of enhancement credits if the department receives a request for
  111  the use of enhancement credits and determines that such use will
  112  not cause or contribute to a violation of water quality
  113  standards.
  114         Section 2. Subsection (1) of section 373.4135, Florida
  115  Statutes, is amended, and subsection (8) is added to that
  116  section, to read:
  117         373.4135 Mitigation banks and offsite regional mitigation.—
  118         (1) The Legislature finds that the adverse impacts of
  119  activities regulated under this part may be offset by the
  120  creation, maintenance, and use of mitigation banks and offsite
  121  regional mitigation. Mitigation banks and offsite regional
  122  mitigation can enhance the certainty of mitigation and provide
  123  ecological value due to the improved likelihood of environmental
  124  success associated with their proper construction, maintenance,
  125  and management. Therefore, the department and the water
  126  management districts are directed to participate in and
  127  encourage the establishment of private and public mitigation
  128  banks and offsite regional mitigation on lands owned by a local
  129  government, when such lands are located in a credit-deficient
  130  basin as defined in paragraph (8)(a) and the proposed mitigation
  131  bank or offsite regional mitigation would provide one or more of
  132  the deficient habitat type credits described in subparagraph
  133  (8)(a)2. Mitigation banks and offsite regional mitigation should
  134  emphasize the restoration and enhancement of degraded ecosystems
  135  and the preservation of uplands and wetlands as intact
  136  ecosystems rather than alteration of landscapes to create
  137  wetlands. This is best accomplished through restoration of
  138  ecological communities that were historically present.
  139         (a) The Legislature intends that the provisions for
  140  establishing mitigation banks apply equally to both public and
  141  private entities, except that the rules of the department and
  142  water management districts may set forth different measures
  143  governing financial responsibility, and different measures
  144  governing legal interest, needed to ensure the construction and
  145  perpetual protection of a mitigation bank.
  146         (b) The Legislature recognizes the importance of mitigation
  147  banks as an appropriate and allowable mitigation alternative to
  148  permittee-responsible mitigation. However, the Legislature also
  149  recognizes that certain timing and geographical constraints
  150  could result in the unavailability of mitigation bank credits
  151  for a certain project upon completion of the project’s
  152  application. If state and federal mitigation credits are not
  153  available to offset the adverse impacts of a project, a local
  154  government may allow permittee-responsible mitigation consisting
  155  of the restoration or enhancement of lands purchased and owned
  156  by a local government for conservation purposes, and such
  157  mitigation must conform to the permitting requirements of s.
  158  373.4136. Except when a local government has allowed a public or
  159  private mitigation project to be created on land it has
  160  purchased for conservation purposes pursuant to this paragraph,
  161  a governmental entity may not create or provide mitigation for a
  162  project other than its own unless the governmental entity uses
  163  land that was not previously purchased for conservation and
  164  unless the governmental entity provides the same financial
  165  assurances as required for mitigation banks permitted under s.
  166  373.4136. This paragraph does not apply to:
  167         1. Mitigation banks permitted before December 31, 2011,
  168  under s. 373.4136;
  169         2. Offsite regional mitigation areas established before
  170  December 31, 2011, under subsection (6) or, when credits are not
  171  available at a mitigation bank permitted under s. 373.4136,
  172  mitigation areas created by a local government which were
  173  awarded mitigation credits pursuant to the uniform mitigation
  174  assessment method as provided in chapter 62-345, Florida
  175  Administrative Code, under a permit issued before December 31,
  176  2011;
  177         3. Mitigation for transportation projects under ss.
  178  373.4137 and 373.4139;
  179         4. Mitigation for impacts from mining activities under s.
  180  373.41492;
  181         5. Mitigation provided for single-family lots or homeowners
  182  under subsection (7);
  183         6. Entities authorized in chapter 98-492, Laws of Florida;
  184         7. Mitigation provided for electric utility impacts
  185  certified under part II of chapter 403; or
  186         8. Mitigation provided on sovereign submerged lands under
  187  subsection (6).
  188         (c) It is the further intent of the Legislature that
  189  mitigation banks and offsite regional mitigation be considered
  190  appropriate and a permittable mitigation option under the
  191  conditions specified by the rules of the department and water
  192  management districts.
  193         (d) Offsite mitigation, including offsite regional
  194  mitigation, may be located outside the regional watershed in
  195  which the adverse impacts of an activity regulated under this
  196  part are located, if such adverse impacts are offset by the
  197  offsite mitigation.
  198         (e) The department or water management district may allow
  199  the use of a mitigation bank or offsite regional mitigation
  200  alone or in combination with other forms of mitigation to offset
  201  adverse impacts of activities regulated under this part.
  202         (f) When an applicant seeking for a permit under the
  203  provisions of this part other than this section and s. 373.4136
  204  submits more than one mitigation proposal to the department or a
  205  water management district, the department or water management
  206  district shall, in evaluating each proposal, ensure that such
  207  proposal adequately offsets the adverse impacts.
  208         (8)It is the intent of the Legislature to allow limited
  209  use of local government land, including lands acquired for
  210  conservation, for private sector mitigation banks, provided that
  211  the private mitigation banks are located in credit-deficient
  212  basins and would produce the habitat type credits that are
  213  unavailable or insufficient in such basins. As used in this
  214  subsection, the term “local government” includes a county,
  215  municipality, or special district as those terms are defined in
  216  s. 165.031. This subsection does not apply to lands owned by the
  217  state or a water management district.
  218         (a)A basin is considered to be a credit-deficient basin if
  219  it is a drainage basin or a corresponding hydrologic unit code,
  220  and has all of the following features:
  221         1.At least one mitigation bank has been permitted and
  222  established on lands not owned by a governmental entity, and
  223  that mitigation bank no longer has one of the habitat type
  224  credits listed in subparagraph 2. available for purchase;
  225         2.There is a documented shortage of either forested
  226  freshwater, non-forested freshwater, forested saltwater, or non
  227  forested saltwater habitat type credits; and
  228         3.Pending mitigation bank applications on private land or
  229  pending credit releases from mitigation banks on nongovernmental
  230  land are unlikely to alleviate the credit shortage.
  231         (b) A local government with land in a credit-deficient
  232  basin may, through the public procurement processes identified
  233  in chapter 287 or other established competitive procurement
  234  processes, consider a proposal from a private entity applicant
  235  for the right to establish a mitigation bank on the local
  236  government land, including such lands purchased for conservation
  237  purposes, provided acquisition encumbrances do not exist to the
  238  contrary.
  239         (c)If such a mitigation bank is to be established and
  240  operated on local government land, the local government and
  241  private applicant must enter into a use agreement that meets the
  242  requirements of this paragraph and that requires the private
  243  applicant to establish and operate the mitigation bank in
  244  conformance with the permitting requirements of s. 373.4136, and
  245  the rules adopted thereunder. The use agreement must:
  246         1.Include a requirement that the local government
  247  landowner assume the role of long-term steward of the property,
  248  and state that the landowner will grant a conservation easement
  249  or substantially similar recordable instrument pursuant to s.
  250  704.06, in favor of the permitting agency, if a conservation
  251  easement or substantially similar recordable instrument
  252  acceptable to the permitting agency does not already exist; and
  253         2.Include a requirement for the private applicant to do
  254  all of the following:
  255         a.Provide bid and performance security instruments for a
  256  minimum of 5 percent of the total bid amount, to ensure that a
  257  use agreement with the local government is executed and a
  258  mitigation bank permit is applied for by the private applicant.
  259         b.Operate and maintain the mitigation bank until final
  260  permit success criteria are met, as permitted by the department
  261  or water management district.
  262         c.Agree to establish financial assurance for long-term
  263  management in an amount agreeable to the local government
  264  landowner and as provided for in rules adopted pursuant to this
  265  section and s. 373.4136, for use by the local government as the
  266  long-term steward of the land, after the mitigation bank final
  267  environmental resource permit success criteria are met. The
  268  private sector applicant may also use an endowment to provide
  269  financial assurances.
  270         d.Acknowledge that denial of the state mitigation bank
  271  permit application will terminate the use agreement.
  272         e.Acknowledge that failure to obtain the mitigation bank
  273  permit within 2 years after the use agreement execution date
  274  will terminate the use agreement, unless it is extended for good
  275  cause by the local government.
  276         (d)Public funds may not be used to fund the financial
  277  assurances for construction and implementation of the mitigation
  278  bank or for the establishment of the long-term management
  279  financial assurances.
  280         (e)In determining the number of mitigation bank credits to
  281  be awarded to a mitigation bank established pursuant to this
  282  subsection, the proposed mitigation bank’s location in or
  283  adjacent to the local government conservation lands may not
  284  increase the uniform mitigation assessment method location
  285  factor assessment and scoring value, even if the conservation
  286  status of the mitigation bank land is improved due to such
  287  location.
  288         (f)Credit deficiency is confirmed at the time the use
  289  agreement is executed by the parties. Once confirmed, the
  290  mitigation bank application may proceed, even if the deficiency
  291  is relieved.
  292         (g)While not required, the department, in coordination
  293  with the water management districts, may adopt rules to
  294  implement this subsection.
  295         Section 3. For the purpose of incorporating the amendment
  296  made by this act to section 373.4135, Florida Statutes, in
  297  references thereto, paragraphs (a) and (c) of subsection (1) of
  298  section 403.9332, Florida Statutes, are reenacted to read:
  299         403.9332 Mitigation and enforcement.—
  300         (1)(a) Any area in which 5 percent or more of the trimmed
  301  mangrove trees have been trimmed below 6 feet in height, except
  302  as provided in s. 403.9326(1)(c), (d), (f), (g), and (h),
  303  destroyed, defoliated, or removed as a result of trimming
  304  conducted under s. 403.9326 or s. 403.9327 must be restored or
  305  mitigated. Restoration must be accomplished by replanting
  306  mangroves, in the same location and of the same species as each
  307  mangrove destroyed, defoliated, removed, or trimmed, to achieve
  308  within 5 years a canopy area equivalent to the area destroyed,
  309  removed, defoliated, or trimmed; or mitigation must be
  310  accomplished by replanting offsite, in areas suitable for
  311  mangrove growth, mangroves to achieve within 5 years a canopy
  312  area equivalent to the area destroyed, removed, defoliated, or
  313  trimmed. Where all or a portion of the restoration or mitigation
  314  is not practicable, as determined by the department or delegated
  315  local government, the impacts resulting from the destruction,
  316  defoliation, removal, or trimming of the mangroves must be
  317  offset by donating a sufficient amount of money to offset the
  318  impacts, which must be used for the restoration, enhancement,
  319  creation, or preservation of mangrove wetlands within a
  320  restoration, enhancement, creation, or preservation project
  321  approved by the department or delegated local government; or by
  322  purchasing credits from a mitigation bank created under s.
  323  373.4135 at a mitigation ratio of 2-to-1 credits to affected
  324  area. The donation must be equivalent to the cost, as verified
  325  by the department or delegated local government, of creating
  326  mangrove wetlands at a 2-to-1, created versus affected ratio,
  327  based on canopy area. The donation may not be less than $4 per
  328  square foot of created wetland area.
  329         (c) If mangroves are to be trimmed or altered under a
  330  permit issued under s. 403.9328, the department or delegated
  331  local government may require mitigation. The department or
  332  delegated local government shall establish reasonable mitigation
  333  requirements that must include, as an option, the use of
  334  mitigation banks created under s. 373.4135, where appropriate.
  335  The department’s mitigation requirements must ensure that
  336  payments received as mitigation are sufficient to offset impacts
  337  and are used for mangrove creation, preservation, protection, or
  338  enhancement.
  339         Section 4. This act shall take effect July 1, 2024.