Florida Senate - 2024 COMMITTEE AMENDMENT
Bill No. CS for SB 1532
Ì490056(Î490056
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
02/07/2024 .
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The Committee on Community Affairs (Brodeur) recommended the
following:
1 Senate Amendment (with title amendment)
2
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Present paragraphs (a) through (e) of subsection
6 (2) of section 373.4134, Florida Statutes, are redesignated as
7 paragraphs (b) through (f), respectively, a new paragraph (a) is
8 added to that subsection, and paragraphs (b), (d), and (e) of
9 subsection (1), paragraph (b) of subsection (3), and paragraphs
10 (a) and (j) of subsection (7) of that section are amended, to
11 read:
12 373.4134 Water quality enhancement areas.—
13 (1) LEGISLATIVE FINDINGS AND INTENT.—The Legislature finds
14 that:
15 (b) An expansion of existing authority for regional
16 treatment to include offsite compensatory treatment in water
17 quality enhancement areas to make enhancement credits available
18 for purchase by an applicant governmental entities to address
19 impacts regulated under this part is needed.
20 (d) Water quality enhancement areas are a valuable tool to
21 assist an applicant governmental entities in satisfying the net
22 improvement performance standard under s. 373.414(1)(b)3. to
23 ensure significant reductions of pollutant loadings.
24 (e) Water quality enhancement areas that provide water
25 quality enhancement credits to applicants governmental entities
26 seeking permits under this part and to governmental entities
27 seeking to meet an assigned basin management action plan
28 allocation or reasonable assurance plan under s. 403.067 are
29 considered an appropriate and permittable option.
30 (2) DEFINITIONS.—As used in this section, the term:
31 (a) “Applicant” means a governmental or private sector
32 entity that wishes to purchase water quality enhancement credits
33 to meet an assigned basin management action plan allocation or
34 reasonable assurance plan or for the purpose of achieving the
35 net improvement performance standard under s. 373.414(1)(b)3.
36 (3) WATER QUALITY ENHANCEMENT AREAS.—
37 (b) Water quality enhancement credits may be sold only to
38 applicants governmental entities seeking to meet an assigned
39 basin management action plan allocation or reasonable assurance
40 plan or for the purpose of achieving net improvement performance
41 standards under s. 373.414(1)(b)3. after the governmental entity
42 has provided reasonable assurances have been provided for the
43 assurance of meeting department rules for design and
44 construction of all onsite stormwater management, as required by
45 law.
46 (7) ENHANCEMENT CREDITS.—
47 (a) The department or water management district shall
48 authorize the sale and use of enhancement credits to applicants
49 governmental entities to address adverse water quality impacts
50 of activities regulated under this part or to assist
51 governmental entities seeking to meet required nonpoint source
52 contribution reductions assigned in a basin management action
53 plan or reasonable assurance plan under s. 403.067.
54 (j) Notwithstanding any other law, this section does not
55 limit or restrict the authority of the department to deny the
56 use of enhancement credits when the department is not reasonably
57 assured that the use of the credits will not cause or contribute
58 to a violation of water quality standards, even if the project
59 being implemented by the applicant governmental entity is within
60 the enhancement service area. The department may allow the use
61 of enhancement credits if the department receives a request for
62 the use of enhancement credits and determines that such use will
63 not cause or contribute to a violation of water quality
64 standards.
65 Section 2. Subsection (1) of section 373.4135, Florida
66 Statutes, is amended, and subsection (8) is added to that
67 section, to read:
68 373.4135 Mitigation banks and offsite regional mitigation.—
69 (1) The Legislature finds that the adverse impacts of
70 activities regulated under this part may be offset by the
71 creation, maintenance, and use of mitigation banks and offsite
72 regional mitigation. Mitigation banks and offsite regional
73 mitigation can enhance the certainty of mitigation and provide
74 ecological value due to the improved likelihood of environmental
75 success associated with their proper construction, maintenance,
76 and management. Therefore, the department and the water
77 management districts are directed to participate in and
78 encourage the establishment of private and public mitigation
79 banks and offsite regional mitigation on lands owned by a local
80 government, when such lands are located in a credit-deficient
81 basin as defined in paragraph (8)(a) and the proposed mitigation
82 bank or offsite regional mitigation would provide one or more of
83 the deficient habitat type credits described in subparagraph
84 (8)(a)2. Mitigation banks and offsite regional mitigation should
85 emphasize the restoration and enhancement of degraded ecosystems
86 and the preservation of uplands and wetlands as intact
87 ecosystems rather than alteration of landscapes to create
88 wetlands. This is best accomplished through restoration of
89 ecological communities that were historically present.
90 (a) The Legislature intends that the provisions for
91 establishing mitigation banks apply equally to both public and
92 private entities, except that the rules of the department and
93 water management districts may set forth different measures
94 governing financial responsibility, and different measures
95 governing legal interest, needed to ensure the construction and
96 perpetual protection of a mitigation bank.
97 (b) The Legislature recognizes the importance of mitigation
98 banks as an appropriate and allowable mitigation alternative to
99 permittee-responsible mitigation. However, the Legislature also
100 recognizes that certain timing and geographical constraints
101 could result in the unavailability of mitigation bank credits
102 for a certain project upon completion of the project’s
103 application. If state and federal mitigation credits are not
104 available to offset the adverse impacts of a project, a local
105 government may allow permittee-responsible mitigation consisting
106 of the restoration or enhancement of lands purchased and owned
107 by a local government for conservation purposes, and such
108 mitigation must conform to the permitting requirements of s.
109 373.4136. Except when a local government has allowed a public or
110 private mitigation project to be created on land it has
111 purchased for conservation purposes pursuant to this paragraph,
112 a governmental entity may not create or provide mitigation for a
113 project other than its own unless the governmental entity uses
114 land that was not previously purchased for conservation and
115 unless the governmental entity provides the same financial
116 assurances as required for mitigation banks permitted under s.
117 373.4136. This paragraph does not apply to:
118 1. Mitigation banks permitted before December 31, 2011,
119 under s. 373.4136;
120 2. Offsite regional mitigation areas established before
121 December 31, 2011, under subsection (6) or, when credits are not
122 available at a mitigation bank permitted under s. 373.4136,
123 mitigation areas created by a local government which were
124 awarded mitigation credits pursuant to the uniform mitigation
125 assessment method as provided in chapter 62-345, Florida
126 Administrative Code, under a permit issued before December 31,
127 2011;
128 3. Mitigation for transportation projects under ss.
129 373.4137 and 373.4139;
130 4. Mitigation for impacts from mining activities under s.
131 373.41492;
132 5. Mitigation provided for single-family lots or homeowners
133 under subsection (7);
134 6. Entities authorized in chapter 98-492, Laws of Florida;
135 7. Mitigation provided for electric utility impacts
136 certified under part II of chapter 403; or
137 8. Mitigation provided on sovereign submerged lands under
138 subsection (6).
139 (c) It is the further intent of the Legislature that
140 mitigation banks and offsite regional mitigation be considered
141 appropriate and a permittable mitigation option under the
142 conditions specified by the rules of the department and water
143 management districts.
144 (d) Offsite mitigation, including offsite regional
145 mitigation, may be located outside the regional watershed in
146 which the adverse impacts of an activity regulated under this
147 part are located, if such adverse impacts are offset by the
148 offsite mitigation.
149 (e) The department or water management district may allow
150 the use of a mitigation bank or offsite regional mitigation
151 alone or in combination with other forms of mitigation to offset
152 adverse impacts of activities regulated under this part.
153 (f) When an applicant seeking for a permit under the
154 provisions of this part other than this section and s. 373.4136
155 submits more than one mitigation proposal to the department or a
156 water management district, the department or water management
157 district shall, in evaluating each proposal, ensure that such
158 proposal adequately offsets the adverse impacts.
159 (8) It is the intent of the Legislature to allow limited
160 use of local government land, including lands acquired for
161 conservation, for private sector mitigation banks, provided that
162 the private mitigation banks are located in credit-deficient
163 basins and would produce the habitat type credits that are
164 unavailable or insufficient in such basins. As used in this
165 subsection, the term “local government” includes a county,
166 municipality, or special district as those terms are defined in
167 s. 165.031.
168 (a) A basin is considered to be a credit-deficient basin if
169 it is a drainage basin or a corresponding hydrologic code, and
170 has all of the following features:
171 1. At least one mitigation bank has been permitted and
172 established on lands not owned by a governmental entity, and
173 that mitigation bank no longer has one of the habitat type
174 credits listed in subparagraph 2. available for purchase;
175 2. There is a documented shortage of either forested
176 freshwater, non-forested freshwater, forested saltwater, or non
177 forested saltwater habitat type credits; and
178 3. Pending mitigation bank applications on private land or
179 pending credit releases from mitigation banks on nongovernmental
180 land are unlikely to alleviate the credit shortage.
181 (b) A local government with land in a credit-deficient
182 basin may, through the public procurement processes identified
183 in chapter 287 or other established competitive procurement
184 processes, consider a proposal from a private entity applicant
185 for the right to establish a mitigation bank on the local
186 government land, including such lands purchased for conservation
187 purposes, provided acquisition encumbrances do not exist to the
188 contrary.
189 (c) If such a mitigation bank is to be established and
190 operated on local government land, the local government and
191 private applicant must enter into a use agreement that meets the
192 requirements of this paragraph and that requires the private
193 applicant to establish and operate the mitigation bank in
194 conformance with the permitting requirements of s. 373.4136, and
195 the rules adopted thereunder. The use agreement must:
196 1. Include a requirement that the local government
197 landowner assume the role of long-term steward of the property,
198 and state that the landowner will grant a conservation easement
199 or substantially similar recordable instrument pursuant to s.
200 704.06, in favor of the permitting agency, if a conservation
201 easement or substantially similar recordable instrument
202 acceptable to the permitting agency does not already exist; and
203 2. Include a requirement for the private applicant to do
204 all of the following:
205 a. Provide bid and performance security instruments for a
206 minimum of 5 percent of the total bid amount, to ensure that a
207 use agreement with the local government is executed and a
208 mitigation bank permit is applied for by the private applicant.
209 b. Operate and maintain the mitigation bank until final
210 permit success criteria are met, as permitted by the department
211 or water management district.
212 c. Agree to establish financial assurance for long-term
213 management in an amount agreeable to the local government
214 landowner and as provided for in rules adopted pursuant to this
215 section and s. 373.4136, for use by the local government as the
216 long-term steward of the land, after the mitigation bank final
217 environmental resource permit success criteria are met. The
218 private sector applicant may also use an endowment to provide
219 financial assurances.
220 d. Acknowledge that denial of the state mitigation bank
221 permit application will terminate the use agreement.
222 e. Acknowledge that failure to obtain the mitigation bank
223 permit within 2 years after the use agreement execution date
224 will terminate the use agreement, unless it is extended for good
225 cause by the local government.
226 (f) Public funds may not be used to fund the financial
227 assurances for construction and implementation of the mitigation
228 bank or for the establishment of the long-term management
229 financial assurances.
230 (g) In determining the number of mitigation bank credits to
231 be awarded to a mitigation bank established pursuant to this
232 subsection, the proposed mitigation bank’s location in or
233 adjacent to the local government conservation lands may not
234 increase the uniform mitigation assessment method location
235 factor assessment and scoring value, even if the conservation
236 status of the mitigation bank land is improved due to such
237 location.
238 (h) Credit deficiency is confirmed at the time the use
239 agreement is executed by the parties. Once confirmed, the
240 mitigation bank application may proceed, even if the deficiency
241 is relieved.
242 (i) While not required, the department, in coordination
243 with the water management districts, may adopt rules to
244 implement this subsection.
245 Section 3. For the purpose of incorporating the amendment
246 made by this act to section 373.4135, Florida Statutes, in
247 references thereto, paragraphs (a) and (c) of subsection (1) of
248 section 403.9332, Florida Statutes, are reenacted to read:
249 403.9332 Mitigation and enforcement.—
250 (1)(a) Any area in which 5 percent or more of the trimmed
251 mangrove trees have been trimmed below 6 feet in height, except
252 as provided in s. 403.9326(1)(c), (d), (f), (g), and (h),
253 destroyed, defoliated, or removed as a result of trimming
254 conducted under s. 403.9326 or s. 403.9327 must be restored or
255 mitigated. Restoration must be accomplished by replanting
256 mangroves, in the same location and of the same species as each
257 mangrove destroyed, defoliated, removed, or trimmed, to achieve
258 within 5 years a canopy area equivalent to the area destroyed,
259 removed, defoliated, or trimmed; or mitigation must be
260 accomplished by replanting offsite, in areas suitable for
261 mangrove growth, mangroves to achieve within 5 years a canopy
262 area equivalent to the area destroyed, removed, defoliated, or
263 trimmed. Where all or a portion of the restoration or mitigation
264 is not practicable, as determined by the department or delegated
265 local government, the impacts resulting from the destruction,
266 defoliation, removal, or trimming of the mangroves must be
267 offset by donating a sufficient amount of money to offset the
268 impacts, which must be used for the restoration, enhancement,
269 creation, or preservation of mangrove wetlands within a
270 restoration, enhancement, creation, or preservation project
271 approved by the department or delegated local government; or by
272 purchasing credits from a mitigation bank created under s.
273 373.4135 at a mitigation ratio of 2-to-1 credits to affected
274 area. The donation must be equivalent to the cost, as verified
275 by the department or delegated local government, of creating
276 mangrove wetlands at a 2-to-1, created versus affected ratio,
277 based on canopy area. The donation may not be less than $4 per
278 square foot of created wetland area.
279 (c) If mangroves are to be trimmed or altered under a
280 permit issued under s. 403.9328, the department or delegated
281 local government may require mitigation. The department or
282 delegated local government shall establish reasonable mitigation
283 requirements that must include, as an option, the use of
284 mitigation banks created under s. 373.4135, where appropriate.
285 The department’s mitigation requirements must ensure that
286 payments received as mitigation are sufficient to offset impacts
287 and are used for mangrove creation, preservation, protection, or
288 enhancement.
289 Section 4. This act shall take effect July 1, 2024.
290
291 ================= T I T L E A M E N D M E N T ================
292 And the title is amended as follows:
293 Delete everything before the enacting clause
294 and insert:
295 A bill to be entitled
296 An act relating to mitigation; amending s. 373.4134,
297 F.S.; revising legislative findings; defining the term
298 “applicant”; revising the entities to whom and
299 purposes for which water quality enhancement credits
300 may be sold; requiring the Department of Environmental
301 Protection or water management districts to authorize
302 the sale and use of such credits to applicants, rather
303 than to governmental entities, to address adverse
304 water quality impacts of certain activities; revising
305 construction; amending s. 373.4135, F.S.; revising
306 legislative findings; providing legislative intent;
307 defining the term “local government”; providing
308 circumstances under which basins are considered to be
309 credit-deficient basins; authorizing local governments
310 with land in credit-deficient basins to consider bids
311 from private-sector applicants to establish mitigation
312 banks on such lands; requiring use agreements that
313 meet certain requirements for such mitigation banks;
314 prohibiting the use of public funds to fund financial
315 assurances for certain purposes; providing that
316 specified factors may not increase the uniform
317 mitigation assessment method location factor
318 assessment and scoring value in determining the number
319 of mitigation bank credits to be awarded; providing
320 that credit deficiency is confirmed at the time of
321 filing a permit application; authorizing the
322 department, in coordination with the water management
323 districts, to adopt rules; reenacting s.
324 403.9332(1)(a) and (c), F.S., relating to mitigation
325 and enforcement, to incorporate the amendments made to
326 s. 373.4135, F.S., in references thereto; providing an
327 effective date.