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: CS/SB 1686
INTRODUCER: Environment and Natural Resources Committee and Senator Wright
SUBJECT: Designation of Brevard Barrier Island Area as an Area of Critical State Concern
DATE: March 27, 2023
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Carroll Rogers EN Fav/CS
2. CA
3. RC
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Technical Changes
I. Summary:
CS/SB 1686 establishes the Brevard Barrier Island Area as an area of critical state concern. The
bill provides Legislative findings regarding the necessity of designating the Brevard Barrier
Island Area as an area of critical state concern. These findings include environmental, economic,
and safety considerations. The bill provides that the Legislature intends to:
Establish a land use management system that protects the natural environment of the
southern Brevard Barrier Island Area;
Establish a land use management system that promotes orderly and balanced growth in
accordance with the capacity of existing public facilities and services;
Protect and improve the Indian River Lagoon ecosystem, including improving water quality
of the Brevard Barrier Island Area by funding water quality improvement projects; and
Ensure that the population of the Brevard Barrier Island can be safely evacuated.
The bill provides guiding principles for development within the Brevard Barrier Island Area. It
also allows for the removal of the Brevard Barrier Island Area’s designation as an area of critical
state concern if the legislative intent has been fulfilled and the work program tasks specified in
rules of the Administration Commission have been completed. The bill provides criteria that
must be met before the state land planning agency may recommend removing the area of critical
state concern designation.
Beginning November 30, 2030, the state land planning agency must submit an annual written
report to the Administration Commission on the progress of the Brevard Barrier Island Area.
REVISED: BILL: CS/SB 1686 Page 2
II. Present Situation:
Areas of Critical State Concern
The Areas of Critical State Concern Program was created in the Florida Environmental Land and
Water Management Act of 1972.
1
The program is intended to protect resources and public
facilities of major statewide significance, within designated geographic areas, from uncontrolled
development that would cause substantial deterioration of such resources.
2
The Department of Economic Opportunity (DEO)
3
may recommend specific areas of critical
state concern to the Administration Commission, which includes the Governor and Cabinet.
4
Within 45 days, the Commission must either reject or adopt the recommendation, with or without
modification, and by rule designate the area of critical state concern.
5
If the rule is adopted, it is
then submitted to the President of the Senate and the Speaker of the House of Representatives no
later than 30 days prior to the next regular session of the Legislature.
6
An area of critical state concern may be designated for:
An area containing, or having a significant impact upon, environmental or natural resources
of regional or statewide importance, the uncontrolled private or public development of which
would cause substantial deterioration of such resources;
An area containing, or having a significant impact upon, historical or archaeological
resources, sites, or statutorily defined historical or archaeological districts, the private or
public development of which would cause substantial deterioration or complete loss of such
resources, sites, or districts; or
An area having a significant impact upon, or being significantly impacted by, an existing or
proposed major public facility or other area of major public investment.
7
Once an area of critical state concern is designated, DEO reviews all local development projects
within area and may appeal to the Florida Land and Water Adjudicatory Commission
8
any local
development orders that are inconsistent with state guidelines and local comprehensive plans and
regulations. DEO must also review and approve amendments to comprehensive plans and land
development regulations proposed and adopted by local governments within the designated
areas.
9
1
Chapter 72-317, Laws of Fla.; Department of Economic Opportunity (DEO), Areas of Critical State Concern Program,
https://www.floridajobs.org/community-planning-and-development/programs/community-planning-table-of-contents/areas-
of-critical-state-concern (last visited Mar. 21, 2023).
2
DEO, Areas of Critical State Concern Program.
3
DEO is the state land planning agency. Section 380.031(18), F.S.
4
Section 380.031(1), F.S.; s. 380.05(1)(a), F.S.
5
Section 380.05(1)(b), F.S.
6
Section 380.05(1)(c), F.S.
7
Section 380.05(2), F.S.
8
The Florida Land and Water Adjudicatory Commission consists of the Administration Commission, which includes the
Governor and members of the Cabinet. Florida Land and Water Adjudicatory Commission, Statement of Agency
Organization and Operation, 1 (2023), available at https://www.myflorida.com/myflorida/cabinet/flwac/flwac.pdf;
s. 380.031(1), F.S.
9
DEO, Areas of Critical State Concern Program. BILL: CS/SB 1686 Page 3
Areas of critical state concern currently designated in the state include the Big Cypress,
10
Green
Swamp,
11
Florida Keys,
12
and Apalachicola Bay
13
areas of critical state concern.
Brevard Barrier Island Area
Barrier islands form as waves repeatedly deposit sediment parallel to the shoreline. As wind and
waves shift according to weather patterns and local geographic features, these islands constantly
move, erode, and grow.
14
They are generally separated from the mainland by tidal creeks, bays,
and lagoons. Beaches and sand dune systems form on the side of the island facing the ocean; the
side facing the shore often contains marshes, tidal flats, and maritime forests. These areas are
important habitat for seabirds, fish and shellfish, and nesting sea turtles.
15
These islands are critical to protecting coastal communities and ecosystems from extreme
weather.
16
Beach dunes and grasses on barrier islands absorb wave energy before the wave hits
the mainland. This generally means smaller storm surge and less flooding on the coast. Today,
barrier islands are disappearing at a high rate.
17
The Brevard Barrier Island Area’s beaches are important nesting grounds for threatened and
endangered sea turtles and are home to the largest nesting aggregation of loggerhead sea turtles
in the world.
18
The barrier island is bordered by the Indian River Lagoon (IRL), and its
ecosystem helps protect the water quality and ecological productivity of the IRL.
19
The Indian River Lagoon
The IRL is a 156-mile-long estuary spanning approximately 40 percent of Florida’s east coast.
20
There are six coastal counties in the IRL watershed: Volusia, Brevard, Indian River, St. Lucie,
Martin, and Palm Beach.
21
The IRL extends from Ponce de Leon Inlet near New Smyrna Beach
10
Section 380.055, F.S.
11
Section 380.0551, F.S.
12
Section 380.0552, F.S.
13
Section 380.0555, F.S.
14
National Oceanic and Atmospheric Administration (NOAA), What is a barrier island?,
https://oceanservice.noaa.gov/facts/barrier-
islands.html#:~:text=These%20islands%20are%20critical%20to,less%20flooding%20on%20the%20coast (last visited Mar.
21, 2023).
15
Id.
16
Id.
17
Id.
18
Sea Turtle Conservancy, Barrier Island Education Center, https://conserveturtles.org/barrier-island-education-center/ (last
visited Mar. 21, 2023).
19
Indian River Lagoon Species Inventory, Barrier Islands, https://irlspecies.org/misc/Barrierislnd.php (last visited Mar. 21,
2023).
20
DEP, Basin Management Action Plan, Indian River Lagoon Basin Central Indian River Lagoon, 14 (2021), available at
https://publicfiles.dep.state.fl.us/DEAR/BMAP/IndianRiverLagoon/BMAP_Documents/2021_IRL_BMAP_Final/CIRL/Final
_CIRL_BMAP_02102021.pdf; IRLNEP, Importance, https://onelagoon.org/importance/ (last visited Feb. 15, 2023).
21
DEP, Basin Management Action Plan, Indian River Lagoon Basin Central Indian River Lagoon, 14 (2021). BILL: CS/SB 1686 Page 4
in Volusia County to the southern border of
Jupiter Inlet in Martin County.
22
There are
three interconnected lagoons in the IRL
basin: Mosquito Lagoon, Banana River
Lagoon, and Indian River Lagoon.
23
Seventy-one percent of its area and nearly
half its length is within Brevard County.
24
The IRL is considered the most biologically
diverse estuary in North America.
25
It is
home to more than 2,000 species of plants,
600 species of fish, 300 species of birds,
and 53 threatened or endangered species.
26
In 2014, the estimated annual economic
value received from the IRL was
approximately $7.6 billion, around $1.57
billion of which was attributable to
recreation and visitor-related activity.
27
Industry groups directly influenced by the
IRL supported nearly 72,000 jobs.
28
The IRL ecosystem has been harmed by
human activities in the region. Stormwater
runoff from urban and agricultural areas,
wastewater treatment facility discharges,
canal discharges, septic systems, animal
waste, and fertilizer applications have led
to harmful levels of nutrients and sediments
22
Id.
23
DEP, TMDL Report, Nutrient and Dissolved Oxygen TMDLs for the Indian River Lagoon and Banana River Lagoon, 1
(Mar. 2009), available at https://floridadep.gov/sites/default/files/indian-banana-nutrient-do-tmdl.pdf.
24
Tetra Tech, Inc. & Closewaters, LLC, Save Our Indian River Lagoon Project Plan 2019 Update, xi (Feb. 2023)[hereinafter
Save Our Lagoon], available at https://www.brevardfl.gov/SaveOurLagoon/ProjectPlan. The map on this page shows the
IRL watershed. IRLNEP, IRLWatershedMap_With PlBound, https://onelagoon.org/irlwatershedmap_withplbound/# (last
visited Feb. 17, 2023).
25
DEP, Basin Management Action Plan, Indian River Lagoon Basin Central Indian River Lagoon, 45 (2021), available at
https://floridadep.gov/sites/default/files/central-irl-bmap.pdf; An estuary is a partially enclosed, coastal waterbody where
freshwater from rivers and streams mixes with saltwater from the ocean. Estuaries are among the most productive ecosystems
on earth, home to unique plant and animal communities that have adapted to brackish water: freshwater mixed with saltwater.
U.S. EPA, What Is An Estuary?, https://www.epa.gov/nep/basic-information-about-estuaries (last visited Feb. 15, 2023);
NOAA, What Is An Estuary?, https://oceanservice.noaa.gov/facts/estuary.html (last visited Feb. 15, 2023).
26
Indian River Lagoon Species Inventory, Biodiversity,
https://www.irlspecies.org/misc/Total_Biodiv.php#:~:text=Home%20to%20over%204%2C200%20species%20of%20plants
%2C%20birds%2C,species%20of%20fish%20and%20370%20species%20of%20birds (last visited Feb. 15, 2023).
27
East Central Florida Regional Planning Council and Treasure Coast Regional Planning Council, Indian River Lagoon
Economic Valuation Update, vi, ix (Aug. 26, 2016), available at
https://files.tcrpc.org/portfolio%20of%20work/Economic%20Development/IRL%20Valuation/FinalReportIRL08_26_2016.p
df.
28
Id. at ix. BILL: CS/SB 1686 Page 5
entering the lagoon.
29
The St. Lucie Estuary also discharges water that often contains toxic
cyanobacteria (also known as blue-green algae) from Lake Okeechobee into the IRL.
30
These
pollutants create cloudy conditions, feed algal blooms, and lead to muck accumulation, all of
which negatively impact the seagrass that provides habitat for much of the IRL’s marine life.
31
During the 2011 “Superbloom,” intense algal blooms of phytoplankton occurred throughout most
of the IRL, lasting for seven months and resulting in massive losses of seagrass that has yet to
fully recover.
32
There have also been recurring brown tides;
33
unusual mortalities of dolphins,
manatees, and shorebirds; and large fish kills due to low dissolved oxygen from decomposing
algae.
34
Archie Carr National Wildlife Refuge and Sea Turtles
In North America, sea turtles primarily nest from North Carolina through Florida, with over 90
percent of nesting occurring in Florida.
35
Within that range is the Archie Carr National Wildlife
Refuge (Carr Refuge), a 20.5-mile section of shoreline between Melbourne Beach and Wabasso,
along Florida’s east central coast. Since its establishment by Congress in 1989, the Carr Refuge,
named after the Sea Turtle Conservancy’s founding scientific director, has been a major success.
The stretch of beach within the Refuge boundary is the most important sea turtle nesting habitat
in the United States.
36
Sea turtles are large, air-breathing reptiles that inhabit tropical and subtropical seas throughout
the world.
37
Their shells consist of an upper part (carapace) and a lower section (plastron). Hard
scales (or scutes) cover all but the leatherback turtle and the number and arrangement of these
scutes can be used to determine the species.
38
Only female sea turtles come ashore to nest as males rarely ever return to land after crawling into
the sea as hatchlings. Most females return to nest on the beach where they were born. Nesting
29
Tetra Tech, Inc. & Closewaters, LLC, Save Our Indian River Lagoon Project Plan 2019 Update at xi; Marine Resources
Council, Indian River Lagoon Health Update, 4-7 (2018), available at https://savetheirl.org/wp-content/uploads/mrc-report-
card-2018-min.pdf.
30
DEP, Basin Management Action Plan, St. Lucie River and Estuary Basin, 15 (2020), available at
https://publicfiles.dep.state.fl.us/DEAR/DEARweb/BMAP/NEEP_2020_Updates/St_Lucie_BMAP_01-31-20.pdf ; DEP,
Basin Management Action Plan, Lake Okeechobee, 14 (2020), available at
https://publicfiles.dep.state.fl.us/DEAR/DEARweb/BMAP/NEEP_2020_Updates/Lake%20Okeechobee%20BMAP_01 -31-
20.pdf.
31
Tetra Tech, Inc. & Closewaters, LLC, Save Our Indian River Lagoon Project Plan 2019 Update at xi.
32
IRL 2011 Consortium, Indian River Lagoon 2011 Superbloom - Plan of Investigation, 2-3 (2012), available at
https://www.sjrwmd.com/static/waterways/irl-technical//2011superbloom_investigationplan_June_2012.pdf; Marine
Resources Council, Indian River Lagoon Coastal Community Report Card, 2,4 (2022), available at https://savetheirl.org/wp-
content/uploads/IRLReportCard2022-opt.pdf.
33
Brown tide is a type of algal bloom dominated by a brown, microscopic marine algae, which can be harmful to ecosystems
in high concentrations, and was first documented in state waters in 2012. FWC, Effects of Brown Tide in the Indian River
Lagoon (2012), https://myfwc.com/research/redtide/monitoring/historical-events/brown-tide/ (last visited Feb. 15, 2023).
34
Tetra Tech, Inc. & Closewaters, LLC, Save Our Indian River Lagoon Project Plan 2019 Update at xi.
35
Sea Turtle Conservancy, Barrier Island Education Center, https://conserveturtles.org/barrier-island-education-center/ (last
visited Mar. 21, 2023).
36
Id.
37
Sea Turtle Conservancy, Information about Sea Turtles: An Introduction, https://conserveturtles.org/information-about-
sea-turtles-an-introduction/ (last visited Mar. 21, 2023).
38
Id. BILL: CS/SB 1686 Page 6
seasons occur at different times around the world. In the U.S., nesting occurs from April through
October. Most females nest at least twice during each mating season; some may nest up to ten
times in a season. However, a female will not nest in consecutive years, typically skipping one or
two years before returning.
39
Researchers do not yet know how long young sea turtles spend in the open sea or exactly where
they go, but once they reach the size of a dinner-plate they appear at feeding grounds in
nearshore waters. They grow slowly and take between 15 and 50 years to reach reproductive
maturity, depending on the species. There is no way to determine the age of a sea turtle from its
physical appearance. It is theorized that some species can live over 100 years.
40
Green, leatherback, and hawksbill sea turtles are classified as endangered in the U.S. under the
Endangered Species Act.
41
More loggerheads nest within the Carr Refuge than anywhere else in
the Western Hemisphere. Over the past several years, there has been an observed increase in
both green turtle and leatherback nesting in the Carr Refuge, indicating that the protection of
these beaches is essential to the survival and recovery of these three species.
42
III. Effect of Proposed Changes:
Section 1 creates s. 380.0553, F.S., to establish the Brevard Barrier Island Area as an area of
critical state concern. The bill may be cited as the “Brevard Barrier Island Area Protection Act.”
The bill contains the following legislative findings regarding the necessity of designating the
Brevard Barrier Island Area as an area of critical state concern:
The southern barrier island of Brevard County represents one of the most fragile and
endangered coastal ecosystems in North America and the beaches, dunes, coastal scrub, and
maritime hammock areas of the barrier island ecosystem represent some of the most fragile
and endangered natural upland communities in the state and nation;
The beaches of the region are among the most important nesting grounds for threatened and
endangered sea turtles in the Western Hemisphere and the beach running the length of the
southern barrier island in Brevard County is home to the largest nesting aggregation of
loggerhead sea turtles in the world and the management decisions made in the region have
global impacts for the species;
The Archie Carr National Wildlife Refuge is located within the Brevard Barrier Island Area
and is a significant conservation area designated to protect habitat at the most significant area
for loggerhead sea turtle nesting in the world, at the most significant area for green turtle
nesting in North America, and for a diverse array of plant and animal species;
The Indian River Lagoon (IRL), designated as an Estuary of National Significance by the
U.S. Environmental Protection Agency in 1990, borders the western shore of the barrier
39
Id.
40
Id.
41
Id. The Endangered Species Act (ESA) defines an endangered species as any species which is in danger of extinction
throughout all or a significant portion of its range. Endangered species are automatically protected by prohibitions of several
types of “take,” including harming, harassing, collecting, or killing, under Section 9 of the ESA. NOAA, What is the
difference between a threatened and endangered species?, https://oceanservice.noaa.gov/facts/endangered.html (last visited
Mar. 21, 2023).
42
Sea Turtle Conservancy, Barrier Island Education Center. BILL: CS/SB 1686 Page 7
island and the natural habitats of the barrier island ecosystem protect the water quality and
productivity of the IRL;
The saltwater recreational fishery of the IRL generates hundreds of millions of dollars per
year in local economic benefits;
Density limitations and natural resource protection on the barrier island has increased public
tax burdens associated with the provisions of services, building and maintenance of
infrastructure for barrier island residential developments, and public costs for rebuilding
public and private structures following severe erosion events;
Protection of the primary dune system of the barrier island provides the only protective
buffer for local development from storm surges associated with tropical storms and
hurricanes; and
The entirety of the barrier island lies within a zone that is the first to be subject to mandatory
evacuation protocols due to the vulnerability of the barrier island in hurricane events and the
adverse impacts of such vulnerability on evacuating safely.
Through this bill, the Legislature intends to:
Establish a land use management system that protects the natural environment of the
southern Brevard Barrier Island Area;
Establish a land use management system that promotes orderly and balanced growth in
accordance with the capacity of existing public facilities and services;
Protect and improve the IRL ecosystem, including improving water quality of the Brevard
Barrier Island Area through federal, state, and local funding of water quality improvement
projects; and
Ensure that the population of the Brevard Barrier Island can be safely evacuated in the event
of a hurricane.
The bill provides that the Brevard Barrier Island Area is that portion of Brevard County bounded
on the north by the southern boundary of the Town of Melbourne Beach, on the east by the
Atlantic Ocean, on the west by the Indian River, and on the south by the southern boundary of
Sebastian Inlet State Park. The bill provides township, ranges, and sections as designated by the
Brevard Pubic Land Survey System.
The bill directs state, regional, and local agencies and units of government in the Brevard Barrier
Island Area to coordinate their plans and conduct their programs and regulatory activities to be
consistent with all of the following guiding principles for development within the area:
Preventing the adverse impacts of development on resources critical to sea turtle habitat by
prohibiting new shoreline hardening structures and enforcing existing state and county
coastal construction regulations;
Prioritizing water quality restoration projects in the IRL;
Reducing nutrient contributions from septic tanks and wastewater facilities, stormwater
discharges, and agriculture non-point sources into the IRL;
Supporting innovative, nature-based solutions including living shorelines, and freshwater and
coastal wetland restoration;
Safeguarding against adverse economic, social, environmental, and public health and safety
impacts posed by flooding and storm surge by protecting critical assets identified in s.
380.093, F.S.; BILL: CS/SB 1686 Page 8
Protecting shoreline and marine resources, including mangroves, seagrass beds, wetlands, sea
turtles, manatees, and fish and wildlife, and related habitats;
Protecting upland resources, including dune ridges, beaches, wildlife, and related habitats;
Limiting the adverse impacts of development on the quality of water throughout the Brevard
Barrier Island Area and the Indian River Lagoon;
Enhancing natural scenic resources to promote the aesthetic benefits of the natural
environment; and
Ensuring that development is compatible with the unique barrier island characteristics.
The bill allows the designation of the Brevard Barrier Island Area as an area of critical state
concern to be recommended for removal if the legislative intent has been fulfilled and the work
program tasks specified in rules of the Administration Commission have been completed.
Beginning November 30, 2030, the state land planning agency must annually submit a written
report to the Administration Commission describing the progress of the Brevard Barrier Island
Area and shall recommend removing the area of critical state concern designation if it determines
that:
Adequate restoration and renourishment programs are in place to preserve the beaches and
dunes of the southern barrier island in Brevard County for nesting sea turtles;
Seagrass replanting in the IRL extending the length of the Brevard Barrier Island Protection
Area is in a coverage volume that would establish recovery to scientifically defensible
reference targets;
Nonpoint pollution sources into the IRL that contribute to total phosphorus, total nitrogen,
chlorophyll-a, fecal coliform, and metals have been sufficiently reduced to meet water
quality criteria standards resulting in the removal of the IRL from the impaired waters list;
The green sea turtle (Chelonia mydas), loggerhead sea turtle (Caretta caretta), and
leatherback sea turtle (Dermochelys coriacea) have been delisted from the Florida
Endangered and Threatened Species rule and the Florida Marine Turtle Protection Act;
All local comprehensive plans and land development regulations and the administration of
such plans and regulations are adequate to protect the Brevard Barrier Island Area, fulfill the
legislative intent expressed in the bill, and are consistent with and further the principles
guiding development; and
A local government has adopted a resolution at a public hearing recommending the removal
of the designation.
Section 2 provides an effective date of July 1, 2023.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None. BILL: CS/SB 1686 Page 9
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill creates section 380.0553 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.)
CS by Environment and Natural Resources on March 27, 2023:
The committee substitute makes technical changes.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.