The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Environment and Natural Resources
BILL: SB 198
INTRODUCER: Senator Rodriguez
SUBJECT: Seagrass Mitigation Banks
DATE: January 14, 2022
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Collazo Rogers EN Pre-meeting
2. CA
3. AP
I. Summary:
SB 198 authorizes the Board of Trustees of the Internal Improvement Trust Fund (Board of
Trustees) to establish seagrass mitigation banks to ensure the preservation and regeneration of
seagrass and to offset the unavoidable impacts of projects, so long as the seagrass mitigation
banks meet the public interest criteria enshrined in state law. The bill clarifies that it does not
prohibit mitigation for impacts to seagrass or other habitats on sovereignty or non-sovereignty
submerged lands, upon approval of the Board of Trustees.
II. Present Situation:
Seagrasses
Seagrasses are grass-like flowering plants that live completely submerged in marine and
estuarine waters.
1
Seagrasses occur throughout the coastal waters in Florida, including in
protected bays and lagoons as well as in deeper waters along the continental shelf in the Gulf of
Mexico.
2
The depth at which seagrasses occur is limited by water clarity because most species
require high levels of light.
3
Seagrasses perform many important functions, including
maintaining water clarity, stabilizing the bottom of aquatic habitats, providing habitat for marine
life, and providing food for many marine animals and water birds.
4
There are seven different
species of seagrasses found in Florida’s waters.
5
1
Florida Dep’t of Environmental Protection (DEP), Florida Seagrasses, https://floridadep.gov/rcp/seagrass (last visited Jan.
11, 2022).
2
Id.
3
Id.
4
Id.
5
Id. These species are: “Cuban shoal grass (Halodule wrightii), turtle grass (Thalassia testudinum), manatee grass
(Syringodium filiforme), star grass (Halophila engelmannii), paddle grass (Halophila decipiens), Johnson's seagrass
(Halophila johnsonii), or widgeon grass (Ruppia maritima).” Section 253.04(3)(a)1., F.S.
REVISED: BILL: SB 198 Page 2
Along Florida’s coastline and within its estuaries, there are more than 2 million acres of
seagrass.
6
The state and its partners map and monitor seagrass abundance, and while efforts to
promote seagrasses have led to positive outcomes in places like Tampa Bay and Sarasota Bay,
certain areas have experienced recent losses of seagrasses, such as Florida’s Big Bend, Florida
Bay, and the Indian River Lagoon.
7
Seagrasses face several threats, including events that reduce
water clarity and decrease the amount of light reaching the bottom, such as algae blooms, as well
as physical damage, such as from boat propeller scarring or dredging.
8
In many cases a person
operating a vessel outside a marked channel that causes “seagrass scarring” within an aquatic
preserve commits a noncriminal infraction.
9
Sovereign Submerged Lands
Sovereign submerged lands are owned by the state and include, but are not limited to, tidal lands,
islands, sandbars, shallow banks, and lands waterward of the ordinary or mean high water line,
10
beneath navigable fresh water or tidally-influenced waters.
11
Under the State Constitution, the
title to all sovereign submerged lands is held by the state in trust for the people.
12
This generally
provides the public with the right to use sovereign submerged lands for traditional recreational
purposes such as swimming, boating, and fishing.
13
The Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees), comprised
of the Governor and Cabinet, holds title to all sovereign submerged lands in the state.
14
The
Board of Trustees has a duty to preserve and regenerate seagrass in these areas, and the
Legislature has recognized seagrasses as essential to the oceans, gulfs, estuaries, and shorelines
of the state.
15
The Board of Trustees may sell sovereign submerged lands when it determines it to
be in the public interest, and the Board of Trustees may authorize private use of sovereign
submerged lands when it determines it to be not contrary to the public interest.
16
The Board of
Trustees’ consideration of what is in the public interest includes determining to what extent such
conveyance would interfere with the conservation of wildlife, marine ecosystems, and other
6
Florida Fish and Wildlife Conservation Commission, Seagrass FAQ, https://myfwc.com/research/habitat/seagrasses/
information/faq/ (last visited Jan. 11, 2022).
7
Id.
8
Id.
9
Section 253.04(3), F.S. (2021).
10
Fla. Admin. Code R. 18-21.003(67). The mean high water line is the point on the shore marking the average height of the
high waters over a 19-year period, and it is the boundary between the state-owned foreshore (land alternately covered and
uncovered by the tide) and the dry area above the mean high water line that is subject to private ownership. See ss.
177.27(14), (15) and 177.28(1), F.S.
11
Fla. Admin. Code R. 18-21.003(67).
12
FLA. CONST. art. X, s. 11.
13
Fla. Admin. Code R. 18-21.004(2)(a); see also 5F, LLC v. Hawthorne, 317 So. 3d 220, 223 (Fla. 2d DCA 2021)
(identifying the same traditional uses).
14
Sections 253.03 and 253.12(1), F.S.
15
Section 253.04(3), F.S.
16
FLA. CONST. art. X, s. 11; s. 253.12(2), F.S.; see also Fla. Admin. Code R. 18-21.003(54). The rule defines public interest
as meaning “demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result
of a proposed action, and which would clearly exceed all demonstrable environmental, social, and economic costs of the
proposed action. In determining the public interest in a request for use, sale, lease, or transfer of interest in sovereignty lands
or severance of materials from sovereignty lands, the board shall consider the ultimate project and purpose to be served by
said use, sale, lease, or transfer of lands or materials.” Fla. Admin. Code R. 18-21.003(54). BILL: SB 198 Page 3
natural resources.
17
If objections are filed and it appears the conveyance of submerged lands
would result in the destruction of grass flats suitable as nursery or feeding grounds for marine
life, the Board of Trustees must withdraw the lands from sale.
18
Florida law authorizes the Board of Trustees to adopt rules to administer sovereign submerged
lands.
19
Chapter 18-21 of the Florida Administrative Code, Sovereign Submerged Lands
Management, lists the various forms of authorization necessary for specified activities on
sovereign submerged lands.
20
The Department of Environmental Protection (DEP) and the
Department of Agriculture and Consumer Services (DACS) act as staff to the Board of Trustees
in the review of proposed uses of sovereign submerged lands.
21
DEP is responsible for
environmental permitting of activities and water quality protection on sovereign submerged
lands, while DACS is responsible for managing aquacultural activities on sovereignty submerged
lands.
22
In determining whether an activity is not contrary to the public interest or is in the public interest,
DEP must consider and balance the following criteria:
Whether the activity will adversely affect the public health, safety, or welfare or the property
of others;
Whether the activity will adversely affect the conservation of fish and wildlife, including
endangered or threatened species, or their habitats;
Whether the activity will adversely affect navigation or the flow of water or cause harmful
erosion or shoaling;
Whether the activity will adversely affect the fishing or recreational values or marine
productivity in the vicinity of the activity;
Whether the activity will be of a temporary or permanent nature;
Whether the activity will adversely affect or will enhance significant historical and
archaeological resources under the provisions of s. 267.061; and
The current condition and relative value of functions being performed by areas affected by
the proposed activity.23
Mitigation
Federal Mitigation
The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers (USACE)
promulgate federal regulations establishing environmental criteria, and mechanisms for
compensatory mitigation, under Section 404. The regulations require a permit applicant to take
17
Section 253.12(2)(a), F.S.
18
Section 253.12(4)(e), F.S.
19
Sections 253.03(7) and 253.73, F.S.
20
See Fla. Admin. Code R. 18-21.005.
21
DEP, Sovereign Submerged Lands (SSL) - Proprietary Authority versus Regulatory Authority in Chapter 18-21, F.A.C.,
https://floridadep.gov/water/submerged-lands-environmental-resources-coordination/content/sovereign-submerged-lands-ssl
(last visited Jan. 11, 2022); see also Dep’t of Agriculture and Consumer Services, Aquaculture Submerged Land Leasing,
https://www.fdacs.gov/Agriculture-Industry/Aquaculture/Aquaculture-Submerged-Land-Leasing (last visited Jan. 11, 2022).
22
Fla. Admin. Code R. 18-21.002(1).
23
Section 373.414(1)(a), F.S. BILL: SB 198 Page 4
all appropriate and practicable steps to avoid and minimize adverse impacts to waters of the
U.S.
24
For unavoidable impacts, as the last step in a sequence after avoidance and minimization,
compensatory mitigation may be required to replace the loss of wetland and aquatic resource
functions in the watershed.
25
There are three basic types of compensatory mitigation under Section 404:
Mitigation banks — a mitigation bank sells compensatory mitigation credits to permittees
whose obligation to provide compensatory mitigation is then transferred to the mitigation
bank sponsor. Mitigation banking is the preferred method of compensatory mitigation under
the federal regulations. Reasons for this include that the banks have an approved mitigation
plan and financial assurances, credits are not released until specific milestones are achieved,
and banks typically involve larger, more ecologically valuable parcels.
In-lieu fee programs — funds are paid to a governmental or non-profit entity for natural
resources management. Similar to a bank, an in-lieu fee program sells credits to permittees
whose obligation is then transferred to the in-lieu program sponsor. However, the rules
governing in-lieu fee programs are somewhat different, and their operation and use are
governed by an in-lieu fee program instrument.
Permittee-responsible mitigation — activities are undertaken by the permittee, or an
authorized agent or contractor, to provide compensatory mitigation for which the permittee
retains full responsibility.26
State Mitigation
At the state level, DEP regulates activities in, on, or over surface waters, as well as any activity
that alters surface water flows, through environmental resource permits (ERPs).
27
ERPs are
required for certain development or construction activities, typically involving the dredging or
filling of wetlands or surface waters, construction of flood protection facilities, building dams or
reservoirs, or any other activities that affect state waters.
28
ERP applications are processed by
either DEP or one of the water management districts in accordance with the division of
24
40 C.F.R. s. 230.91(c); see generally 40 C.F.R. pt. 230 and 33 C.F.R. pt. 322. USACE administers permitting under
Section 404 of the Clean Water Act, which generally requires a permit for any discharge of dredged or fill material into
waters of the U.S., including wetlands. 33 U.S.C. s. 1344 (2021); U.S. Environmental Protection Agency (EPA), Wetland
Regulatory Authority, available at https://www.epa.gov/sites/production/files/2015-03/documents/404_reg_authority
_fact_sheet.pdf (last visited Jan. 11, 2022). In 2020, DEP assumed permitting authority under the State 404 Program for
certain “assumed waters,” but USACE will retain such permitting authority for all other waters in the state. DEP, State 404
Program, https://floridadep.gov/water/submerged-lands-environmental-resources-coordination/content/state-404-program
(last visited Jan. 11, 2022); DEP, State 404 Program Applicant’s Handbook, § 1.1, available at https://www.flrules.org/
gateway/reference.asp?No=Ref-12064 (last visited Jan. 11, 2022).
25
EPA, Wetlands Compensatory Mitigation, available at https://www.epa.gov/sites/production/files/2015-08/documents/
compensatory_mitigation_factsheet.pdf (last visited Jan. 11, 2022).
26
EPA, Mechanisms for Providing Compensatory Mitigation under CWA Section 404, https://www.epa.gov/cwa-
404/mechanisms-providing-compensatory-mitigation-under-cwa-section-404 (last visited Jan. 11, 2022); see also 40 C.F.R.
s. 290.93(b).
27
DEP, Submerged Lands and Environmental Resources Coordination Program, https://floridadep.gov/water/submerged-
lands-environmental-resources-coordination (last visited Jan. 11, 2022).
28
South Florida Water Management District, Environmental Resource Permits, https://www.sfwmd.gov/doing-business-
with-us/permits/environmental-resource-permits (last visited Jan. 11, 2022). BILL: SB 198 Page 5
responsibilities specified in operating agreements between DEP and the water management
districts.
29
Florida’s ERP criteria generally require that, for proposed activities that will result in adverse
impacts to wetland or surface water functions, applicants must implement practicable design
modifications to reduce or eliminate such adverse impacts.
30
After such requirements have been
completed, mitigation is required to offset the adverse impacts.
31
Mitigation under the ERP
program is evaluated in light of the programmatic goal of no net loss of wetland and other
surface water functions.
32
Mitigation can be conducted on-site, off-site, or through the purchase
of credits from a mitigation bank, or through a combination of approaches.
33
Off-site mitigation
is preferred when on-site mitigation is not expected to have long-term viability, or when off-site
mitigation will provide greater improvement in ecological value.
34
Florida law authorizes DEP and the water management districts to require permits authorizing
the establishment and use of mitigation banks.
35
DEP has adopted rules that serve as the basis for
mitigation bank permitting done by DEP and the water management districts.
36
Mitigation Banking
Generally, mitigation banking is a practice in which an environmental enhancement and
preservation project is conducted by a public agency or private entity to provide mitigation for
unavoidable wetland impacts within a defined mitigation service area.
37
The bank is the site
itself, and the currency sold by the banker to the impact permittee is a credit, representing the
wetland ecological value equivalent to the complete restoration of one acre.
38
The number of
potential credits permitted for the bank, and the credit debits required for impact permits, are
determined by the permitting agencies.
39
Creation of a mitigation bank in Florida requires both a permit from DEP or a water management
district, and federal approval of a mitigation bank instrument from several agencies led by
USACE, in a joint state/federal interagency review team.
40
Through this process, depending on
agency approval, a mitigation bank may provide mitigation for permittees under both the federal
and state permitting programs.
29
DEP, Submerged Lands and Environmental Resources Coordination Program, https://floridadep.gov/water/submerged-
lands-environmental-resources-coordination (last visited Jan. 11, 2022).
30
See generally DEP, ERP Applicant’s Handbook Volume I, 10-2, 10-24–10-33 (2020), available at
https://www.flrules.org/gateway/reference.asp?No=Ref-12078 (last visited Jan. 11, 2022).
31
Id.
32
Id. at 10-1, 10-24.
33
Id. at 10-25.
34
Id.
35
See generally ss. 373.4135 and 373.4136, F.S.
36
See generally Fla. Admin. Code Ch. 62-342.
37
DEP, Mitigation and Mitigation Banking, https://floridadep.gov/water/submerged-lands-environmental-resources-
coordination/content/mitigation-and-mitigation-banking (last visited Jan. 11, 2022).
38
Id.
39
Id.
40
DEP, Mitigation Banking Rule and Procedure Synopsis, https://floridadep.gov/water/submerged-lands-environmental-
resources-coordination/content/mitigation-banking-rule-and (last visited Jan. 11, 2022). BILL: SB 198 Page 6
Requirements for permitting mitigation banks differ between mitigation bank instruments issued
by the USACE and state permits issued by DEP or the water management districts. Under the
federal process, a mitigation banking instrument serves as the legal document for the
establishment, operation, and use of a mitigation bank.
41
They are approved by an interagency
review team, through procedures involving public notice and comment.
42
Mitigation banking
instruments must include certain detailed elements, such as a comprehensive mitigation plan
including financial assurances, and a credit release schedule that is tied to the achievement of
specific milestones.
43
Under Florida law, to obtain a mitigation bank permit, the applicant must provide reasonable
assurance that the mitigation bank will:
Improve ecological conditions of the regional watershed;
Provide viable and sustainable ecological and hydrological functions for the proposed
mitigation service area;
Be effectively managed in perpetuity;
Not destroy areas with high ecological value;
Achieve mitigation success; and
Be adjacent to lands that will not adversely affect the long-term viability of the mitigation
bank due to unsuitable land uses or conditions.
44
The applicant must also provide reasonable assurance that:
Any surface water management system that will be constructed, altered, operated,
maintained, abandoned, or removed within a mitigation bank will meet the requirements of
part IV of ch. 373, F.S., which regulates management and storage of surface waters, and rules
adopted thereunder;
The applicant has sufficient legal or equitable interest in the property to ensure perpetual
protection and management of the land within a mitigation bank; and
The applicant can meet the financial responsibility requirements prescribed for mitigation
banks.
45
Seagrass Mitigation Banking
Conceptually
Seagrass mitigation banking is a concept that applies the practices of mitigation banking to
seagrass resources, where seagrass resources could be restored, established, enhanced, or
preserved in a mitigation bank, which then generates credits that may be used to offset
unavoidable impacts to seagrass resources elsewhere. Proponents argue that incentivizing third
parties to protect and maintain a large, healthy area of seagrass beds in advance with an off-site
41
33 C.F.R. s. 332.2.
42
33 C.F.R. s. 332.8; 40 C.F.R. s. 230.98.
43
See generally 33 C.F.R. s. 332.8(d)(6); see also 40 C.F.R. s. 230.98(d)(6).
44
Section 373.4136(1), F.S.
45
Id.; Fla. Admin. Code R. 62-342.400. BILL: SB 198 Page 7
mitigation bank can provide better protection of seagrass resources than permittee-responsible
mitigation.
46
Legislation
In 2008, the Legislature passed a bill authorizing the Board of Trustees to provide for the
establishment of seagrass mitigation banks to offset the unavoidable impacts of projects where
they meet the applicable public interest test.
47
The bill also stated that the authorization “shall not
prohibit mitigation for impacts to seagrass or other habitats on sovereignty submerged lands for
other types of projects, or for projects occurring on non-sovereign submerged lands, upon
applicable approval of the board of trustees.”
48
Governor Crist vetoed the 2008 bill.
49
The veto letter stated that authorizing the conveyance of
sovereignty submerged lands for a bank selling credits to facilitate the destruction of seagrasses
on sovereignty submerged lands elsewhere could fail the constitutional public interest test.
50
The
Governor raised concerns about the long-term success of artificially-created seagrass beds, and
stated that seagrass mitigation banks would likely result in the net destruction of seagrass beds.
51
In addition to seagrass beds, the letter stated that the legislation allows an applicant to seek
approval from the Board of Trustees for any project involving destruction of habitat in
sovereignty submerged lands that does not pass the public interest test. Finally, the letter stated
that implementing the banks would require excluding the public from the sovereignty submerged
lands and contravene the public’s navigation rights.
52
In 2021, another bill was introduced that authorized the Board of Trustees to establish seagrass
mitigation banks, and which expressly did not prohibit mitigation, upon approval of the Board of
Trustees, for impacts to other habitats on sovereignty submerged lands or non-sovereignty
submerged lands.
53
In its first committee of reference, the bill was amended to specify that the
Board of Trustees “may authorize leases” for seagrass mitigation banks, and also to require DEP
to modify its rules to remove duplicative financial assurance requirements and ensure permitted
seagrass mitigation banks comply with the federal mitigation baking rules.
54
The bill died in its
second committee of reference.
In a 2021 analysis, DEP raised several concerns and comments about seagrass mitigation
banks.
55
DEP stated that the long-term dedication necessary to establish the banks may conflict
with the Board of Trustees’ policy and purpose to allow for public access to sovereignty
46
See generally Stephanie A. Broad, Seagrass Mitigation Banks and the Governor’s Veto, 39 STETSON L. REV. 285 (2009),
available at https://www.stetson.edu/law/lawreview/media/vol-39-1-broad.pdf (last visited Jan. 11, 2022).
47
CS/HB 7059 (Reg. Sess. 2008).
48
Id.
49
Letter from Governor Charlie Crist to Secretary Kurt S. Browning (June 30, 2008), available at
https://static.votesmart.org/static/vetotext/21176.pdf (last visited Jan. 11, 2022).
50
Id. at 1.
51
Id. at 2.
52
Id.
53
SB 1668 (Reg. Sess. 2021).
54
CS/SB 1668 (Reg. Sess. 2021). The amendment also removed the reference to non-sovereignty submerged lands. See id.
55
DEP, 2021 Legislative Session, Bill #: SB 1668 (2021), available at https://www.flsenate.gov/Committees/Show/EN/
MeetingPacket/5170/9341_MeetingPacket_5170.29.21.pdf (last visited Jan. 11, 2022). BILL: SB 198 Page 8
submerged lands, including swimming, boating, and fishing.
56
DEP expressed concern that if
state-owned lands that were purchased with bond proceeds were used for seagrass mitigation
banks – a revenue-generating activity – it could trigger taxation of the interest on the bonds in
violation of the Internal Revenue Service’s regulations and the bond indenture. DEP’s analysis
also agreed with the concerns regarding mitigation banks that were raised by the 2008 veto letter,
commenting that preserving seagrass resources is not appropriate for compensatory mitigation,
because if loss or degradation of seagrass resources are said to be offset by preserving existing
seagrasses that are already protected then there will be a net loss of seagrass resources.
57
III. Effect of Proposed Changes:
The bill amends s. 253.03, F.S., to authorize the Board of Trustees to establish seagrass
mitigation banks consistent with state law, to both ensure the preservation and regeneration of
seagrass as defined in state law, and to offset the unavoidable impacts of projects when seagrass
mitigation banks meet the public interest criteria in existing law.
The bill also clarifies that it does not prohibit mitigation for impacts to seagrass or other habitats
on sovereignty or non-sovereignty submerged lands, upon approval by the Board of Trustees.
The bill takes effect on July 1, 2022.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None.
56
Id. at 1.
57
Id. at 2. BILL: SB 198 Page 9
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
The Board of Trustees may realize a marginal increase in proprietary authorization fees
due to the establishment of seagrass mitigation banks on sovereignty submerged lands.
The bill may also result in increased costs to the Board of Trustees and DEP because
rulemaking, and potentially the establishment of a new program, may be necessary to
implement the requirements contained in the bill.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends section 253.03 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.