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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
1
An act relating to environmental management; creating 2
s. 373.4134, F.S.; providing legislative findings and 3
intent; providing definitions; providing for water 4
quality enhancement areas, water quality enhancement 5
area permits, water quality enhancement service areas, 6
and enhancement credits; providing requirements for 7
such areas, permits, and credits; directing the 8
Department of Environmental Protection and water 9
management districts to authorize the sale and use of 10
enhancement credits for specified purposes; providing 11
construction; providing that the authority of the act 12
is supplemental; directing the department to maintain 13
enhancement credit ledgers; authorizing the department 14
to adopt rules; providing amending s. 403.892, F.S.; 15
correcting a cross-reference; revising requirements 16
for developers and homebuilders to qualify for 17
graywater technology incentives; providing that 18
certain occupancy is not eligibility cri terion for 19
such incentives; requiring the department to adopt and 20
modify specified rules; providing rulemaking 21
requirements; providing an effective date. 22
23
Be It Enacted by the Legislature of the State of Florida: 24
25
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
Section 1. Section 373.4134, Flori da Statutes, is created 26
to read: 27
373.4134 Water quality enhancement areas. - 28
(1) LEGISLATIVE FINDINGS AND INTENT. -The Legislature finds 29
that: 30
(a) Water quality will be improved and adverse water 31
quality impacts of activities regulated under this part may be 32
addressed by the construction, operation, maintenance, and long -33
term management of water quality enhancement areas that provide 34
offsite compensatory treatment. 35
(b) An expansion of existing authority for regional 36
treatment to include offsite compen satory treatment in water 37
quality enhancement areas to make enhancement credits available 38
for purchase by governmental entities to address impacts 39
regulated under this part is needed. 40
(c) The construction, operation, maintenance, and long -41
term management of water quality enhancement areas under this 42
section will improve the certainty and long -term viability of 43
water quality treatment systems. 44
(d) Water quality enhancement areas are a valuable tool to 45
assist governmental entities in satisfying the net im provement 46
performance standard under s. 373.414(1)(b)3. to ensure 47
significant reductions of pollutant loadings. 48
(e) Water quality enhancement areas that provide water 49
quality enhancement credits to governmental entities seeking 50
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permits under this part an d governmental entities seeking to 51
meet an assigned basin management action plan allocation or 52
reasonable assurance plan under s. 403.067 are considered an 53
appropriate and permittable option. 54
(2) DEFINITIONS.-As used in this section, the term: 55
(a) "Enhancement credit" means a standard unit of measure 56
that represents a quantity of pollutant removed. 57
(b) "Governmental entity" means any political subdivision 58
of the state, including any state agency, department, county, 59
municipality, special district, sch ool district, utility 60
authority, or other authority or instrumentality, agency, unit, 61
or department thereof. 62
(c) "Natural system" means an ecological system supporting 63
aquatic and wetland-dependent natural resources, including fish 64
and aquatic and wetland-dependent wildlife habitats. 65
(d) "Water quality enhancement area" means a natural 66
system constructed, operated, managed, and maintained for the 67
purpose of providing offsite regional treatment for which 68
enhancement credits may be provided pursuant to a water quality 69
enhancement area permit issued under this section. 70
(e) "Water quality enhancement area permit" means an 71
environmental resource permit issued for a water quality 72
enhancement area which authorizes the construction, operation, 73
management, and maintenance of an enhancement area and the 74
purchase and sale of enhancement credits. 75
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(3) WATER QUALITY ENHANCEMENT AREAS. - 76
(a) The construction, operation, management, and 77
maintenance of a water quality enhancement area must be approved 78
through the environmental resource permitting process. 79
(b) Water quality enhancement credits may be sold only to 80
governmental entities seeking to meet an assigned basin 81
management action plan allocation or reasonable assurance plan 82
or for the purpose of achieving net improvement under s. 83
373.414(1)(b)3. after the governmental entity has provided 84
reasonable assurance of meeting department rules for design and 85
construction of all onsite stormwater management. 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 t hat do not meet applicable state 92
water quality criteria. 93
(d) A water quality enhancement area must be used to 94
create, improve, or use natural systems to improve water 95
quality. 96
(e) A governmental entity may use a water quality 97
enhancement area for its o wn water quality needs. However, a 98
governmental entity may not act as a sponsor to construct, 99
operate, manage, or maintain a water quality enhancement area or 100
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market enhancement credits to third parties. 101
(f) A local government may not require a permit or 102
otherwise impose regulations governing the operation of a water 103
quality enhancement area. 104
(g) This section does not eliminate the obligation of an 105
applicant for a water quality enhancement area permit or an 106
applicant proposing to use enhancement credits to comply with 107
all requirements of this part pertaining to adverse impacts to 108
water quality in receiving waters and adjacent lands or 109
wetlands. 110
(4) WATER QUALITY ENHANCEMENT AREA PERMIT. - 111
(a) To obtain a water quality enhancement area permit, the 112
applicant must provide reasonable assurances that the proposed 113
water quality enhancement area will be used to: 114
1. Meet the requirements for issuance of an environmental 115
resource permit; 116
2. Benefit water quality in the watershed in which the 117
water quality enhancement area is located; 118
3. Meet defined performance or success criteria for the 119
reduction of one or more pollutants or other constituents that 120
prevent receiving waters from meeting applicable state water 121
quality criteria; 122
4. Ensure long-term pollutant reduction through effective 123
operation and maintenance in perpetuity by designation of a 124
responsible long-term maintenance entity supported by an 125
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endowment or other long -term financial assurance sufficient to 126
ensure perpetual operation and maintenance; 127
5. Demonstrate sufficient legal or equitable interest in 128
the property to ensure access and perpetual protection and 129
management of the land within the water quality enhancement 130
area; and 131
6. Provide for permanent preservation of the water quality 132
enhancement area that meets the requirements of s. 704.06. 133
(b) The water quality enhancement area permit must provide 134
for the assessment, valuation, and award of credits based on 135
units of pollutants removed. 136
(c) The department shall base its determination of the 137
award of enhancement credits on standard numerical models or 138
analytical tools that establish the ability of the water quality 139
enhancement area to remove pollutants or constituents. 140
1. If a basin management action plan exists for the 141
watershed in which the water quality enhancement area is 142
located, the applicant must use the same numerical models or 143
analytical tools used for that basin management action plan in 144
the water quality enhancement area permi t application. 145
2. If a basin management action plan does not exist for 146
the watershed in which the water quality enhancement area is 147
located, the applicant, with the approval of the department, may 148
submit as part of the water quality enhancement area perm it 149
application model parameters and results used in a numerical 150
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model or analytical tool used by the department to develop a 151
basin management action plan for a watershed with similar 152
physical characteristics and pollutants as the watershed in 153
which the proposed water quality enhancement area is to be 154
located. 155
3. If the department determines that its numerical model 156
or analytical tool used for a basin management action plan is 157
not appropriate for the proposed water quality enhancement area, 158
the applicant must use a standard numerical model or analytical 159
tool for the proposed water quality enhancement area. 160
4. To assist the department in evaluating and determining 161
enhancement credits, a water quality enhancement area permit 162
application must include the num erical model or analytical tool 163
results used to establish the efficacy of the water quality 164
enhancement area. Supporting information must include, but need 165
not be limited to: 166
a. Rainfall data over the longest period of record 167
available collected from the closest site to the proposed water 168
quality enhancement area, preferably within the same drainage 169
basin. 170
b. Anticipated average annual water quality and quantity 171
inflows to the proposed water quality enhancement area, based on 172
published local data collec ted over a period of record that most 173
closely matches the rainfall data collected under this 174
paragraph. 175
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c. Site-specific conditions affecting the anticipated 176
performance of the proposed water quality enhancement area, 177
including the proposed treatment type and the anticipated 178
associated reduction rates, as demonstrated by the performance 179
of other areas where the treatment type has been established and 180
operating over a minimum of two consecutive wet and dry seasons. 181
d. Data provided pursuant to sub -subparagraphs a. and b. 182
must be from monitoring stations the department deems sufficient 183
to determine flows and local water quality conditions. 184
(d) The issuance of a water quality enhancement area 185
permit under this section d oes not preclude the responsibility 186
of an applicant to obtain other applicable federal, state, and 187
local permits for construction activities associated with the 188
water quality enhancement area. 189
(5) WATER QUALITY ENHANCEMENT SERVICE AREA. -The department 190
shall establish a water quality enhancement service area for 191
each water quality enhancement area. Enhancement credits may be 192
withdrawn and used only to address adverse impacts in the 193
enhancement service area. The boundaries of the enhancement 194
service area shall depend upon the geographic area in which the 195
water quality enhancement area could reasonably be expected to 196
address adverse impacts. Enhancement service areas may overlap, 197
and enhancement service areas for two or more water quality 198
enhancement areas ma y be approved for a regional watershed. 199
(6) MONITORING AND VERIFICATION. — 200
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(a) An applicant for a water quality enhancement area 201
permit must propose a performance and success criteria 202
monitoring and verification plan, with protocols to be 203
implemented once the water quality enhancement area is 204
operational. The protocols must be appropriate for the water 205
quality enhancement area and sufficient to demonstrate that the 206
area is meeting defined performance or success criteria for the 207
reduction of pollutants or contaminants for which credits are 208
awarded by the department. 209
(b) If a permittee fails to comply with the conditions of 210
a water quality enhancement area permit, the department must 211
revoke the ability of the permittee to sell enhancement credits 212
until the water quality enhancement area complies with the 213
permit conditions. 214
(7) ENHANCEMENT CREDITS. - 215
(a) The department or water management district shall 216
authorize the sale and use of enhancement credits to 217
governmental entities to address adverse water qu ality impacts 218
of activities regulated under this part or to assist 219
governmental entities seeking to meet required nonpoint source 220
contribution reductions assigned in a basin management action 221
plan or reasonable assurance plan under s. 403.067. 222
(b) Before approving the use of enhancement credits, the 223
department or water management district must determine that the 224
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enhancement credits used by an applicant seeking a permit under 225
this part are appropriate for a specific permit use. 226
(c) Water quality improvem ent projects using natural 227
systems or land use modifications, including, but not limited 228
to, constructed wetlands or minor impoundments that reduce 229
pollutants to a receiving water body, may be used by an 230
applicant to generate enhancement credits if approve d by the 231
department. Water quality enhancement areas may not be located 232
on lands purchased for conservation pursuant to the Florida 233
Forever Act or the Florida Preservation 2000 Act. 234
(d) The department shall provide for and maintain a ledger 235
to track the award, release, and use of enhancement credits. 236
1. A water management district that authorizes applicants 237
seeking permits under this part to use enhancement credits to 238
address water quality impacts must report to the department the 239
amount of enhancement credits used by the applicants. 240
2. The operator of a water quality enhancement area shall 241
notify the department of the amount of enhancement credits sold 242
or used within 30 days after the date the enhancement credit 243
transaction is completed. 244
(e) Reductions in pollutant loading required under any 245
state regulatory program are not eligible to be considered as 246
enhancement credits. 247
(f) Enhancement credits may not be used by point source 248
dischargers to satisfy regulatory requirements other than those 249
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necessary to obtain an environmental resource permit for 250
construction and operation of the surface water management 251
system of the site. 252
(g) Use of enhancement credits made available by water 253
quality enhancement areas is voluntary. 254
(h) Any landowner, discharge r, or other responsible person 255
regulated under this part or s. 403.067 implementing applicable 256
management strategies specified in an adopted basin management 257
action plan or reasonable assurance plan may not be required by 258
any permit or other enforcement ac tion to use enhancement 259
credits to reduce pollutant loads to achieve the pollutant 260
reductions established pursuant to s. 403.067. 261
(i) A local government may not deny the use of enhancement 262
credits due to the location of the water quality enhancement 263
area outside the jurisdiction of the local government. 264
(j) Notwithstanding any other law, this section does not 265
limit or restrict the authority of the department to deny the 266
use of enhancement credits when the department is not reasonably 267
assured that the use of the credits will not cause or contribute 268
to a violation of water quality standards, even if the project 269
being implemented by the governmental entity is within the 270
enhancement service area. The department may allow the use of 271
enhancement credits if the department receives a request for the 272
use of enhancement credits and determines that such use will not 273
cause or contribute to a violation of water quality standards. 274
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(8) AUTHORITY.—The authority granted to the department 275
under this section is supplement al to the authority granted 276
under s. 403.067(8). 277
(9) RULES.—The department shall adopt rules to implement 278
this section. This section may not be implemented until the 279
department adopts such rules. 280
Section 2. Paragraph (b) of subsection (1) and paragra phs 281
(a), (b), and (d) of subsection (3) of section 403.892, Florida 282
Statutes, are amended, and subsection (6) is added to that 283
section, to read: 284
403.892 Incentives for the use of graywater technologies. — 285
(1) As used in this section, the term: 286
(b) "Graywater" has the same meaning as in s. 287
381.0065(2)(f) s. 381.0065(2)(e). 288
(3) To qualify for the incentives under subsection (2), 289
the developer or homebuilder must certify to the applicable 290
governmental entity as part of its application for development 291
approval or amendment of a development order that all of the 292
following conditions are met: 293
(a) The proposed or existing development has at least 25 294
detached single-family residential homes that are either 295
detached or 25 multifamily dwelling units, which may include 296
apartments dwellings. This paragraph does not apply to 297
multifamily projects over five stories in height. 298
(b) Each single-family residential home or residence will 299
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have its own residential graywater system that is dedicated for 300
its use. Each residence forming part of a multifamily project 301
will be serviced by its own residential graywater system 302
dedicated for its use or by a master graywater collection and 303
reuse system for the entire project. 304
(d) The required maintenance of the graywater system will 305
be the responsibility of the owner residential homeowner . 306
(6) This section does not apply to multifamily projects 307
more than five stories in height. Whether a dwelling is occupied 308
by an owner is not an eligibility criterion fo r a developer or 309
homebuilder to receive the incentives authorized under this 310
section. 311
Section 3. The Department of Environmental Protection 312
shall adopt and modify rules adopted pursuant to ss. 373.4136 313
and 373.414, Florida Statutes, to ensure that requ ired financial 314
assurances are equivalent and sufficient to provide for the 315
long-term management of mitigation permitted under ss. 373.4136 316
and 373.414, Florida Statutes. The department, in consultation 317
with the water management districts, shall include the 318
rulemaking required by this section in existing active 319
rulemaking, or shall complete rule development by June 30, 2023. 320
Section 4. This act shall take effect July 1, 2022. 321