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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
A bill to be entitled 1
An act relating to mitigation; amending s. 373.403, 2
F.S.; defining the term "private -sector sponsor"; 3
making technical changes; amending s. 373.4134, F.S.; 4
revising legislative findings; defining the term 5
"applicant"; revising the entities to and purposes for 6
which water quality enhancement credits may be sold; 7
requiring the Department of Environmental Protection 8
and water management districts to authorize su ch sale 9
and use; revising construction; amending s. 373.4135, 10
F.S.; revising legislative findings; authorizing local 11
governments to solicit proposals from private -sector 12
sponsors for mitigation banks on certain public lands; 13
providing requirements for agre ements between local 14
governments and private -sector sponsors for such 15
mitigation banks; providing requirements for the 16
department and water management districts in assigning 17
credits to such mitigation banks; providing 18
applicability; providing an exception from rulemaking; 19
amending ss. 330.41, 373.414, and 373.461, F.S.; 20
conforming cross-references; reenacting s. 21
403.9332(1)(a) and (c), F.S., relating to mitigation 22
and enforcement, to incorporate the amendments made to 23
s. 373.4135, F.S., in references theret o; providing an 24
effective date. 25
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Be It Enacted by the Legislature of the State of Florida: 27
28
Section 1. Section 373.403, Florida Statutes, is amended 29
to read: 30
373.403 Definitions. —When appearing in this part or in any 31
rule, regulation, or order ad opted pursuant thereto, the 32
following terms mean: 33
(1)(7) "Alter" means to extend a dam or works beyond 34
maintenance in its original condition, including changes which 35
may increase or diminish the flow or storage of surface water 36
which may affect the safet y of such dam or works. 37
(2) "Appurtenant works" means any artificial improvements 38
to a dam which might affect the safety of such dam or, when 39
employed, might affect the holding capacity of such dam or of 40
the reservoir or impoundment created by such dam. 41
(3)(6) "Closed system" means any reservoir or works 42
located entirely within agricultural lands owned or controlled 43
by the user and which requires water only for the filling, 44
replenishing, and maintaining the water level thereof. 45
(4)(1) "Dam" means any artificial or natural barrier, with 46
appurtenant works, raised to obstruct or impound, or which does 47
obstruct or impound, any of the surface waters of the state. 48
(5)(9) "Drainage basin" means a subdivision of a 49
watershed. 50
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(6)(13) "Dredging" means excava tion, by any means, in 51
surface waters or wetlands, as delineated in s. 373.421(1). The 52
term It also means the excavation, or creation, of a water body 53
which is, or is to be, connected to surface waters or wetlands, 54
as delineated in s. 373.421(1), directly or via an excavated 55
water body or series of water bodies. 56
(7)(18) "Ecological value" means the value of functions 57
performed by uplands, wetlands, and other surface waters to the 58
abundance, diversity, and habitats of fish, wildlife, and listed 59
species. These functions include, but are not limited to, 60
providing cover and refuge; breeding, nesting, denning, and 61
nursery areas; corridors for wildlife movement; food chain 62
support; and natural water storage, natural flow attenuation, 63
and water quality improvemen t, which enhances fish, wildlife, 64
and listed species utilization. 65
(8)(15) "Estuary" means a semienclosed, naturally existing 66
coastal body of water that which has a free connection with the 67
open sea and within which seawater is measurably diluted with 68
fresh water derived from riverine systems. 69
(9)(14) "Filling" means the deposition, by any means, of 70
materials in surface waters or wetlands, as delineated in s. 71
373.421(1). 72
(10)(3) "Impoundment" means any lake, reservoir, pond, or 73
other containment of sur face water occupying a bed or depression 74
in the earth's surface and having a discernible shoreline. 75
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(11)(16) "Lagoon" means a naturally existing coastal zone 76
depression that which is below mean high water and that which 77
has permanent or ephemeral communications with the sea, but that 78
which is protected from the sea by some type of naturally 79
existing barrier. 80
(12)(8) "Maintenance" or "repairs" means remedial work of 81
a nature as may affect the safety of any dam, impoundm ent, 82
reservoir, or appurtenant work or works, but excludes routine 83
custodial maintenance. 84
(13)(19) "Mitigation bank" means a project permitted under 85
s. 373.4136 undertaken to provide for the withdrawal of 86
mitigation credits to offset adverse impacts auth orized by a 87
permit under this part. 88
(14)(20) "Mitigation credit" means a standard unit of 89
measure which represents the increase in ecological value 90
resulting from restoration, enhancement, preservation, or 91
creation activities. 92
(15)(21) "Mitigation service area" means the geographic 93
area within which mitigation credits from a mitigation bank may 94
be used to offset adverse impacts of activities regulated under 95
this part. 96
(16)(22) "Offsite regional mitigation" means mitigation on 97
an area of land off the s ite of an activity permitted under this 98
part, where an applicant proposes to mitigate the adverse 99
impacts of only the applicant's specific activity as a 100
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requirement of the permit, which provides regional ecological 101
value, and which is not a mitigation bank permitted under s. 102
373.4136. 103
(17) "Private-sector sponsor" means an individual or 104
entity that establishes and operates a wetland mitigation bank 105
project and is responsible for compliance with any permit or 106
authorization, including, but not limited to, f unding and 107
undertaking wetland enhancement, restoration or creation 108
activities, and the provision of financial assurances, as well 109
as any required monitoring, reporting, and maintenance of the 110
mitigation bank. 111
(18)(4) "Reservoir" means any artificial or natural 112
holding area which contains or will contain the water impounded 113
by a dam. 114
(19)(17) "Seawall" means a manmade wall or an 115
encroachment, except riprap, which is made to break the force of 116
waves and to protect the shore from erosion. 117
(20)(11) "State water quality standards" means water 118
quality standards adopted pursuant to chapter 403. 119
(21)(10) "Stormwater management system" means a system 120
which is designed and constructed or implemented to control 121
discharges which are necessitated by rainfall events, 122
incorporating methods to collect, convey, store, absorb, 123
inhibit, treat, use, or reuse water to prevent or reduce 124
flooding, overdrainage, environmental degradation, and water 125
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pollution or otherwise affect the quantity and quality of 126
discharges from the system. 127
(22)(12) "Watershed" means the land area that which 128
contributes to the flow of water into a receiving body of water. 129
(23)(5) "Works" means all artificial structures, 130
including, but not limited to, ditches, canals, conduits, 131
channels, culverts, pipes, and other construction that connects 132
to, draws water from, drains water into, or is placed in or 133
across the waters in the state. 134
Section 2. Present paragraphs (a) through (e) of 135
subsection (2) of section 373.4134, Florida Statutes, are 136
redesignated as paragraphs (b) through (f), respectively, a new 137
paragraph (a) is added to that subsection, and paragraphs (b), 138
(d), and (e) of subsection (1), paragraph (b) of subsection (3), 139
and paragraphs (a) and (j) of subsection ( 7) of that section are 140
amended, to read: 141
373.4134 Water quality enhancement areas. — 142
(1) LEGISLATIVE FINDINGS AND INTENT. —The Legislature finds 143
that: 144
(b) An expansion of existing authority for regional 145
treatment to include offsite compensatory treatme nt in water 146
quality enhancement areas to make enhancement credits available 147
for purchase by an applicant or a governmental entity entities 148
to address impacts regulated under this part is needed. 149
(d) Water quality enhancement areas are a valuable tool to 150
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assist an applicant governmental entities in satisfying the net 151
improvement performance standard under s. 373.414(1)(b)3. to 152
ensure significant reductions of pollutant loadings. 153
(e) Water quality enhancement areas that provide water 154
quality enhancement c redits to applicants governmental entities 155
seeking permits under this part and to governmental entities 156
seeking to meet an assigned basin management action plan 157
allocation or reasonable assurance plan under s. 403.067 are 158
considered an appropriate and perm ittable option. 159
(2) DEFINITIONS.—As used in this section, the term: 160
(a) "Applicant" means a governmental entity or private -161
sector entity that wishes to purchase water quality enhancement 162
credits to meet an assigned basin management action plan 163
allocation or reasonable assurance plan or for the purpose of 164
achieving the net improvement performance standard under s. 165
373.414(1)(b)3. 166
(3) WATER QUALITY ENHANCEMENT AREAS. — 167
(b) Water quality enhancement credits may be sold only to 168
applicants governmental entities seeking to meet an assigned 169
basin management action plan allocation or reasonable assurance 170
plan or for the purpose of achieving net improvement performance 171
standards under s. 373.414(1)(b)3. after the governmental entity 172
has provided reasonable assurances have been provided assurance 173
of meeting department rules for the design and construction of 174
all onsite stormwater management as required by law. 175
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(7) ENHANCEMENT CREDITS. — 176
(a) The department or water management district shall 177
authorize the sale and use of enhancement credits to applicants 178
governmental entities to address adverse water quality impacts 179
of activities regulated under this part or to assist 180
governmental entities seeking to meet required nonpoint source 181
contribution reductions assigned in a basin management action 182
plan or reasonable assurance plan under s. 403.067. 183
(j) Notwithstanding any other law, this section does not 184
limit or restrict the authority of the department to deny the 185
use of enhancement credits when the department is not reasonably 186
assured that the use of the credits will not cause or contribute 187
to a violation of water quality standards, even if the project 188
being implemented by the applicant governmental entity is within 189
the enhancement service area. The department may al low the use 190
of enhancement credits if the department receives a request for 191
the use of enhancement credits and determines that such use will 192
not cause or contribute to a violation of water quality 193
standards. 194
Section 3. Subsection (1) of section 373.413 5, Florida 195
Statutes, is amended and subsection (8) is added to that section 196
to read: 197
373.4135 Mitigation banks and offsite regional 198
mitigation.— 199
(1) The Legislature finds that the adverse impacts of 200
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activities regulated under this part may be offset by the 201
creation, maintenance, and use of mitigation banks and offsite 202
regional mitigation. Mitigation banks and offsite regional 203
mitigation can enhance the certainty of mitigation and provide 204
ecological value due to the improved likelihood of environmental 205
success associated with their proper construction, maintenance, 206
and management. Therefore, the department and the water 207
management districts are directed to participate in and 208
encourage the establishment of private and public mitigation 209
banks and offsite re gional mitigation on private and public 210
lands owned by a local government . Mitigation banks and offsite 211
regional mitigation should emphasize the restoration and 212
enhancement of degraded ecosystems and the preservation of 213
uplands and wetlands as intact ecosy stems rather than alteration 214
of landscapes to create wetlands. This is best accomplished 215
through restoration of ecological communities that were 216
historically present. 217
(a) The Legislature intends that the provisions for 218
establishing mitigation banks apply equally to both public and 219
private entities, except that the rules of the department and 220
water management districts may set forth different measures 221
governing financial responsibility, and different measures 222
governing legal interest, needed to ensure the construction and 223
perpetual protection of a mitigation bank. 224
(b) The Legislature recognizes the importance of 225
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mitigation banks as an appropriate and allowable mitigation 226
alternative to permittee -responsible mitigation. However, the 227
Legislature also recogn izes that certain timing and geographical 228
constraints could result in the unavailability of mitigation 229
bank credits for a certain project upon completion of the 230
project's application. If state and federal mitigation credits 231
are not available to offset the adverse impacts of a project, a 232
local government may allow permittee -responsible mitigation 233
consisting of the restoration or enhancement of lands purchased 234
and owned by a local government for conservation purposes, and 235
such mitigation must conform to the p ermitting requirements of 236
s. 373.4136. Except when a local government has allowed a public 237
or private mitigation project , including permittee -responsible 238
mitigation, to be created on land it has purchased for 239
conservation purposes pursuant to this paragrap h, a governmental 240
entity may not create or provide mitigation for a project other 241
than its own unless the governmental entity uses land that was 242
not previously purchased for conservation and unless the 243
governmental entity provides the same financial assura nces as 244
required for mitigation banks permitted under s. 373.4136. This 245
paragraph does not apply to: 246
1. Mitigation banks permitted before December 31, 2011, 247
under s. 373.4136; 248
2. Offsite regional mitigation areas established before 249
December 31, 2011, u nder subsection (6) or, when credits are not 250
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available at a mitigation bank permitted under s. 373.4136, 251
mitigation areas created by a local government which were 252
awarded mitigation credits pursuant to the uniform mitigation 253
assessment method as provided i n chapter 62-345, Florida 254
Administrative Code, under a permit issued before December 31, 255
2011; 256
3. Mitigation for transportation projects under ss. 257
373.4137 and 373.4139; 258
4. Mitigation for impacts from mining activities under s. 259
373.41492; 260
5. Mitigation provided for single -family lots or 261
homeowners under subsection (7); 262
6. Entities authorized in chapter 98 -492, Laws of Florida; 263
7. Mitigation provided for electric utility impacts 264
certified under part II of chapter 403; or 265
8. Mitigation provided on sovereign submerged lands under 266
subsection (6). 267
(c) It is the further intent of the Legislature that 268
mitigation banks and offsite regional mitigation be considered 269
appropriate and a permittable mitigation option under the 270
conditions specified by the rul es of the department and water 271
management districts. 272
(d) Offsite mitigation, including offsite regional 273
mitigation, may be located outside the regional watershed in 274
which the adverse impacts of an activity regulated under this 275
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part are located, if such a dverse impacts are offset by the 276
offsite mitigation. 277
(e) The department or water management district may allow 278
the use of a mitigation bank or offsite regional mitigation 279
alone or in combination with other forms of mitigation to offset 280
adverse impacts of activities regulated under this part. 281
(f) When an applicant seeking for a permit under the 282
provisions of this part other than this section and s. 373.4136 283
submits more than one mitigation proposal to the department or a 284
water management district, the de partment or water management 285
district shall, in evaluating each proposal, ensure that such 286
proposal adequately offsets the adverse impacts. 287
(8) A local government may, through a public procurement 288
process, solicit proposals from private -sector sponsors for a 289
mitigation bank on public lands purchased for conservation 290
purposes. If such a mitigation bank is to be established and 291
operated on public land, the local government and private -sector 292
sponsor must enter into an agreement requiring the private -293
sector sponsor to establish and operate the mitigation bank to 294
conform to the permitting requirements of s. 373.4136. 295
(a) The agreement must require the private -sector sponsor 296
to pay a usage fee to the local government which reflects the 297
market value of the pub lic land, as determined by a competitive 298
process in accordance with state law or such other method of 299
assuring that the cost of the use of the public land is fully 300
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accounted for in the pricing of mitigation credits. 301
(b) In determining the number of mitig ation bank credits 302
assigned to the mitigation bank, the department or water 303
management district shall reflect the conservation status of the 304
land in the location factor set forth in the uniform mitigation 305
assessment method. 306
(c) This subsection applies to drainage basins or 307
corresponding hydrologic units if the private -sector sponsor 308
demonstrates to the department or water management district that 309
in-kind credits are not available. 310
(d) Rulemaking is not required to implement this 311
subsection. 312
Section 4. Paragraph (a) of subsection (2) of section 313
330.41, Florida Statutes, is amended to read: 314
330.41 Unmanned Aircraft Systems Act. — 315
(2) DEFINITIONS.—As used in this act, the term: 316
(a) "Critical infrastructure facility" means any of the 317
following, if completely enclosed by a fence or other physical 318
barrier that is obviously designed to exclude intruders, or if 319
clearly marked with a sign or signs which indicate that entry is 320
forbidden and which are posted on the property in a manner 321
reasonably likely to come to the attention of intruders: 322
1. A power generation or transmission facility, 323
substation, switching station, or electrical control center. 324
2. A chemical or rubber manufacturing or storage facility. 325
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3. A water intake structure, water treatment f acility, 326
wastewater treatment plant, or pump station. 327
4. A mining facility. 328
5. A natural gas or compressed gas compressor station, 329
storage facility, or natural gas or compressed gas pipeline. 330
6. A liquid natural gas or propane gas terminal or storage 331
facility. 332
7. Any portion of an aboveground oil or gas pipeline. 333
8. A refinery. 334
9. A gas processing plant, including a plant used in the 335
processing, treatment, or fractionation of natural gas. 336
10. A wireless communications facility, including the 337
tower, antennae, support structures, and all associated ground -338
based equipment. 339
11. A seaport as listed in s. 311.09(1), which need not be 340
completely enclosed by a fence or other physical barrier and 341
need not be marked with a sign or signs indicating tha t entry is 342
forbidden. 343
12. An inland port or other facility or group of 344
facilities serving as a point of intermodal transfer of freight 345
in a specific area physically separated from a seaport. 346
13. An airport as defined in s. 330.27. 347
14. A spaceport ter ritory as defined in s. 331.303(18). 348
15. A military installation as defined in 10 U.S.C. s. 349
2801(c)(4) and an armory as defined in s. 250.01. 350
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16. A dam as defined in s. 373.403 s. 373.403(1) or other 351
structures, such as locks, floodgates, or dikes, whi ch are 352
designed to maintain or control the level of navigable 353
waterways. 354
17. A state correctional institution as defined in s. 355
944.02 or a private correctional facility authorized under 356
chapter 957. 357
18. A secure detention center or facility as defined in s. 358
985.03, or a nonsecure residential facility, a high -risk 359
residential facility, or a maximum -risk residential facility as 360
those terms are described in s. 985.03(44). 361
19. A county detention facility as defined in s. 951.23. 362
20. A critical infrastru cture facility as defined in s. 363
692.201. 364
Section 5. Paragraph (a) of subsection (8) of section 365
373.414, Florida Statutes, is amended to read: 366
373.414 Additional criteria for activities in surface 367
waters and wetlands. — 368
(8)(a) The governing board or the department, in deciding 369
whether to grant or deny a permit for an activity regulated 370
under this part shall consider the cumulative impacts upon 371
surface water and wetlands, as delineated in s. 373.421(1), 372
within the same drainage basin as defined in s. 373.403 s. 373
373.403(9), of: 374
1. The activity for which the permit is sought. 375
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2. Projects which are existing or activities regulated 376
under this part which are under construction or projects for 377
which permits or determinations pursuant to s. 373.421 or s. 378
403.914 have been sought. 379
3. Activities which are under review, approved, or vested 380
pursuant to s. 380.06, or other activities regulated under this 381
part which may reasonably be expected to be located within 382
surface waters or wetlands, as delineated in s. 373.421(1), in 383
the same drainage basin as defined in s. 373.403 s. 373.403(9), 384
based upon the comprehensive plans, adopted pursuant to chapter 385
163, of the local governments having jurisdiction over the 386
activities, or applicable land use restrictions and re gulations. 387
Section 6. Paragraph (c) of subsection (2) of section 388
373.461, Florida Statutes, is amended to read: 389
373.461 Lake Apopka improvement and management. — 390
(2) DEFINITIONS.—As used in this section: 391
(c) "Stormwater management system" has the meaning set 392
forth in s. 373.403 s. 373.403(10). 393
Section 7. For the purpose of incorporating the amendment 394
made by this act to section 373.4135, Florida Statutes, in 395
references thereto, paragraphs (a) and (c) of subsection (1) of 396
section 403.9332, Flori da Statutes, are reenacted to read: 397
403.9332 Mitigation and enforcement. — 398
(1)(a) Any area in which 5 percent or more of the trimmed 399
mangrove trees have been trimmed below 6 feet in height, except 400
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as provided in s. 403.9326(1)(c), (d), (f), (g), and (h) , 401
destroyed, defoliated, or removed as a result of trimming 402
conducted under s. 403.9326 or s. 403.9327 must be restored or 403
mitigated. Restoration must be accomplished by replanting 404
mangroves, in the same location and of the same species as each 405
mangrove destroyed, defoliated, removed, or trimmed, to achieve 406
within 5 years a canopy area equivalent to the area destroyed, 407
removed, defoliated, or trimmed; or mitigation must be 408
accomplished by replanting offsite, in areas suitable for 409
mangrove growth, mangroves to achieve within 5 years a canopy 410
area equivalent to the area destroyed, removed, defoliated, or 411
trimmed. Where all or a portion of the restoration or mitigation 412
is not practicable, as determined by the department or delegated 413
local government, the impact s resulting from the destruction, 414
defoliation, removal, or trimming of the mangroves must be 415
offset by donating a sufficient amount of money to offset the 416
impacts, which must be used for the restoration, enhancement, 417
creation, or preservation of mangrove w etlands within a 418
restoration, enhancement, creation, or preservation project 419
approved by the department or delegated local government; or by 420
purchasing credits from a mitigation bank created under s. 421
373.4135 at a mitigation ratio of 2 -to-1 credits to affected 422
area. The donation must be equivalent to the cost, as verified 423
by the department or delegated local government, of creating 424
mangrove wetlands at a 2 -to-1, created versus affected ratio, 425
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based on canopy area. The donation may not be less than $4 per 426
square foot of created wetland area. 427
(c) If mangroves are to be trimmed or altered under a 428
permit issued under s. 403.9328, the department or delegated 429
local government may require mitigation. The department or 430
delegated local government shall establish re asonable mitigation 431
requirements that must include, as an option, the use of 432
mitigation banks created under s. 373.4135, where appropriate. 433
The department's mitigation requirements must ensure that 434
payments received as mitigation are sufficient to offset i mpacts 435
and are used for mangrove creation, preservation, protection, or 436
enhancement. 437
Section 8. This act shall take effect July 1, 2024. 438