Bill Text: FL S1532 | 2024 | Regular Session | Comm Sub
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Mitigation
Spectrum: Slight Partisan Bill (? 3-1)
Status: (Passed) 2024-05-07 - Chapter No. 2024-144 [S1532 Detail]
Download: Florida-2024-S1532-Comm_Sub.html
Bill Title: Mitigation
Spectrum: Slight Partisan Bill (? 3-1)
Status: (Passed) 2024-05-07 - Chapter No. 2024-144 [S1532 Detail]
Download: Florida-2024-S1532-Comm_Sub.html
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. 29 30 Be It Enacted by the Legislature of the State of Florida: 31 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 69which isdesigned and constructed or implemented to control 70 dischargeswhich arenecessitated 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 thatwhich79 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 termItalso 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 thatwhichhas 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 thatwhichis below mean high water and thatwhich95 has permanent or ephemeral communications with the sea, but 96whichis 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 entityentities151 to address impacts regulated under this part is needed. 152 (d) Water quality enhancement areas are a valuable tool to 153 assist an applicantgovernmental entitiesin 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 applicantsgovernmental entities158 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. 169 (3) WATER QUALITY ENHANCEMENT AREAS.— 170 (b) Water quality enhancement credits may be soldonlyto 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. afterthe governmental entity175has providedreasonable assurances have been provided for the 176assurance of meeting department rules fordesign 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 182governmental entitiesto 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 applicantgovernmental entityis 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 toparticipate in and211 encourage the establishment of privateand publicmitigation 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 seekingfora permit underthe285provisions ofthis 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. 373.403s. 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. 373.403s.376373.403(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. 373.421or s.381403.914have 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. 373.403s. 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. 373.403s. 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.