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. 34 35 Be It Enacted by the Legislature of the State of Florida: 36 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 applicantgovernmentalentitiesto address 51 impacts regulated under this part is needed. 52 (d) Water quality enhancement areas are a valuable tool to 53 assist an applicantgovernmental entitiesin 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 applicantsgovernmental entities58 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. 68 (3) WATER QUALITY ENHANCEMENT AREAS.— 69 (b) Water quality enhancement credits may be soldonlyto 70 applicantsgovernmental entitiesseeking 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. afterthe governmental entity74has providedreasonable assurances have been provided for the 75assurance of meeting department rules fordesign 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 81governmental entitiesto 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 applicantgovernmental entityis 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 toparticipate in and110 encourage the establishment of privateand publicmitigation 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 seekingfora permit underthe186provisions ofthis 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.