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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 VE S
A bill to be entitled 1
An act relating to mitigation; amending s. 373.4134, 2
F.S.; revising legislative findings; defining the term 3
"applicant"; revising the entities to and purposes for 4
which water quality enhancement credits may be sold; 5
requiring the Department of Environmenta l Protection 6
and water management districts to authorize such sale 7
and use; revising construction; amending s. 373.4135, 8
F.S.; revising legislative findings and intent; 9
defining the term "local government"; providing 10
applicability; providing circumstances under which 11
basins are considered to be credit -deficient basins; 12
authorizing local governments with land in credit -13
deficient basins to consider proposals from private -14
sector applicants to establish mitigation banks on 15
such lands; requiring specified agreem ents between 16
such local governments and applicants for such 17
mitigation banks; prohibiting the use of public funds 18
to fund certain financial assurances; providing 19
requirements for determining the amount of credits 20
awarded to such mitigation banks; providing for the 21
confirmation of credit deficiency; authorizing the 22
department, in coordination with the water management 23
districts, to adopt rules; reenacting s. 24
403.9332(1)(a) and (c), F.S., relating to mitigation 25
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and enforcement, to incorporate the amendments m ade to 26
s. 373.4135, F.S., in references thereto; providing an 27
effective date. 28
29
Be It Enacted by the Legislature of the State of Florida: 30
31
Section 1. Present paragraphs (a) through (e) of 32
subsection (2) of section 373.4134, Florida Statutes, are 33
redesignated as paragraphs (b) through (f), respectively, a new 34
paragraph (a) is added to that subsection, and paragraphs (b), 35
(d), and (e) of subsection (1), paragraphs (b) and (c) of 36
subsection (3), and paragraphs (a) and (j) of subsection (7) of 37
that section are amended, to read: 38
373.4134 Water quality enhancement areas. — 39
(1) LEGISLATIVE FINDINGS AND INTENT. —The Legislature finds 40
that: 41
(b) An expansion of existing authority for regional 42
treatment to include offsite compensatory treatment in water 43
quality enhancement areas to make enhancement credits available 44
for purchase by an applicant or a governmental entity entities 45
to address impacts regulated under ss. 373.403-373.443 this part 46
is needed. 47
(d) Water quality enhancement areas are a valuable tool to 48
assist an applicant governmental entities in providing a 49
satisfying the net improvement of the water quality in a 50
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receiving waterbody that does not meet standards or in 51
satisfying the environmental resource permit performance 52
standard under s. 373.414( 1)(b)3. to ensure significant 53
reductions of pollutant loadings. 54
(e) Water quality enhancement areas that provide water 55
quality enhancement credits to applicants governmental entities 56
seeking permits under ss. 373.403-373.443 this part and to 57
governmental entities seeking to meet an assigned basin 58
management action plan allocation or reasonable assurance plan 59
under s. 403.067 are considered an appropriate and permittable 60
option. 61
(2) DEFINITIONS.—As used in this section, the term: 62
(a) "Applicant" means a governmental entity that seeks to 63
purchase water quality enhancement credits to meet an assigned 64
basin management action plan allocation or reasonable assurance 65
plan or a governmental entity or a private sector entity that 66
seeks to purchase water quality enhancement credits for the 67
purpose of achieving the net improvement under s. 68
373.414(1)(b)3. or satisfying environmental resource permit 69
performance standards. 70
(3) WATER QUALITY ENHANCEMENT AREAS. — 71
(b) Water quality enhancement credits may be sold only to 72
governmental entities seeking to meet an assigned basin 73
management action plan allocation or reasonable assurance plan 74
or to applicants for the purpose of achieving net improvement or 75
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meeting environmental resource permit performance standards 76
under s. 373.414(1)(b)3. after the governmental entity has 77
provided reasonable assurances have been provided assurance of 78
meeting department rules for the design and construction of all 79
onsite stormwater management , as required by law . 80
(c) A water quality enha ncement area must be used to 81
address contributions of one or more pollutants or other 82
constituents in the watershed, basin, sub -basin, targeted 83
restoration area, waterbody, or section of waterbody, as 84
determined by the department, in which the water qualit y 85
enhancement area is located that do not meet applicable state 86
water quality standards or environmental resource permit 87
performance standards criteria. 88
(7) ENHANCEMENT CREDITS. — 89
(a) The department or water management district shall 90
authorize the sale and use of enhancement credits to applicants 91
governmental entities to address adverse water quality impacts 92
of activities regulated under ss. 373.403-373.443 this part or 93
to assist governmental entities seeking to meet required 94
nonpoint source contribution reductions assigned in a basin 95
management action plan or reasonable assurance plan under s. 96
403.067. 97
(j) Notwithstanding any other law, this section does not 98
limit or restrict the authority of the department to deny the 99
use of enhancement credits when the department is not reasonably 100
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assured that the use of the credits will not cause or contribute 101
to a violation of water quality standards, even if the project 102
being implemented by t he applicant governmental entity is within 103
the enhancement service area. The department may allow the use 104
of enhancement credits if the department receives a request for 105
the use of enhancement credits and determines that such use will 106
not cause or contribu te to a violation of water quality 107
standards. 108
Section 2. Subsection (1) of section 373.4135, Florida 109
Statutes, is amended and subsection (8) is added to that section 110
to read: 111
373.4135 Mitigation banks and offsite regional 112
mitigation.— 113
(1) The Legislature finds that the adverse impacts of 114
activities regulated under this part may be offset by the 115
creation, maintenance, and use of mitigation banks and offsite 116
regional mitigation. Mitigation banks and offsite regional 117
mitigation can enhance the certain ty of mitigation and provide 118
ecological value due to the improved likelihood of environmental 119
success associated with their proper construction, maintenance, 120
and management. Therefore, the department and the water 121
management districts are directed to participate in and 122
encourage the establishment of private and public mitigation 123
banks and offsite regional mitigation on lands owned by a local 124
government, when such lands are located in a credit -deficient 125
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basin as described in paragraph (8)(a) and the proposed 126
mitigation bank or offsite regional mitigation would provide one 127
or more of the habitat type credits listed in subparagraph 128
(8)(a)2. Mitigation banks and offsite regional mitigation should 129
emphasize the restoration and enhancement of degraded ecosystems 130
and the preservation of uplands and wetlands as intact 131
ecosystems rather than alteration of landscapes to create 132
wetlands. This is best accomplished through restoration of 133
ecological communities that were historically present. 134
(a) The Legislature intends that the provisions for 135
establishing mitigation banks apply equally to both public and 136
private entities, except that the rules of the department and 137
water management districts may set forth different measures 138
governing financial responsibility, and differe nt measures 139
governing legal interest, needed to ensure the construction and 140
perpetual protection of a mitigation bank. 141
(b) The Legislature recognizes the importance of 142
mitigation banks as an appropriate and allowable mitigation 143
alternative to permittee -responsible mitigation. However, the 144
Legislature also recognizes that certain timing and geographical 145
constraints could result in the unavailability of mitigation 146
bank credits for a certain project upon completion of the 147
project's application. If state and federal mitigation credits 148
are not available to offset the adverse impacts of a project, a 149
local government may allow permittee -responsible mitigation 150
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consisting of the restoration or enhancement of lands purchased 151
and owned by a local government for conse rvation purposes, and 152
such mitigation must conform to the permitting requirements of 153
s. 373.4136. Except when a local government has allowed a public 154
or private mitigation project to be created on land it has 155
purchased for conservation purposes pursuant to this paragraph, 156
a governmental entity may not create or provide mitigation for a 157
project other than its own unless the governmental entity uses 158
land that was not previously purchased for conservation and 159
unless the governmental entity provides the same fi nancial 160
assurances as required for mitigation banks permitted under s. 161
373.4136. This paragraph does not apply to: 162
1. Mitigation banks permitted before December 31, 2011, 163
under s. 373.4136; 164
2. Offsite regional mitigation areas established before 165
December 31, 2011, under subsection (6) or, when credits are not 166
available at a mitigation bank permitted under s. 373.4136, 167
mitigation areas created by a local government which were 168
awarded mitigation credits pursuant to the uniform mitigation 169
assessment method as provided in chapter 62 -345, Florida 170
Administrative Code, under a permit issued before December 31, 171
2011; 172
3. Mitigation for transportation projects under ss. 173
373.4137 and 373.4139; 174
4. Mitigation for impacts from mining activities under s. 175
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373.41492; 176
5. Mitigation provided for single -family lots or 177
homeowners under subsection (7); 178
6. Entities authorized in chapter 98 -492, Laws of Florida; 179
7. Mitigation provided for electric utility impacts 180
certified under part II of chapter 403; or 181
8. Mitigation provided on sovereign submerged lands under 182
subsection (6). 183
(c) It is the further intent of the Legislature that 184
mitigation banks and offsite regional mitigation be considered 185
appropriate and a permittable mitigation option under the 186
conditions specified by the rules of the department and water 187
management districts. 188
(d) Offsite mitigation, including offsite regional 189
mitigation, may be located outside the regional watershed in 190
which the adverse impacts of an activity regulated under this 191
part are located, if such adverse impacts are offset by the 192
offsite mitigation. 193
(e) The department or water management district may allow 194
the use of a mitigation bank or offsite regional mitigation 195
alone or in combination with other forms of mitigation to offset 196
adverse impacts of activities regulated under this part. 197
(f) When an applicant seeking for a permit under the 198
provisions of this part other than this section and s. 373.4136 199
submits more than one mitigation proposal to the department or a 200
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water management district, the department or water management 201
district shall, in evaluating each proposal, ensure that such 202
proposal adequately offsets the adverse impacts. 203
(8) It is the intent of the Legislature to allow limited 204
use of local government land, including l ands acquired for 205
conservation, for private sector mitigation banks, provided that 206
the private mitigation banks are located in credit -deficient 207
basins and would produce the habitat type credits that are 208
unavailable or insufficient in such basins. As used i n this 209
subsection, the term "local government" includes a county, 210
municipality, or special district as those terms are defined in 211
s. 165.031. This subsection does not apply to lands owned by the 212
state or a water management district. 213
(a) A basin is consid ered to be a credit-deficient basin 214
if it is a drainage basin or a corresponding hydrologic unit 215
code, and has all of the following features: 216
1. At least one mitigation bank has been permitted and 217
established on lands not owned by a governmental entity a nd that 218
mitigation bank no longer has one of the habitat type credits 219
listed in subparagraph 2. available for purchase. 220
2. There is a documented shortage of either forested 221
freshwater, nonforested freshwater, forested saltwater, or 222
nonforested saltwater habitat type credits. 223
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3. Pending mitigation bank applications on private land or 224
pending credit releases from mitigation banks on nongovernmental 225
land are unlikely to alleviate the credit shortage. 226
(b) A local government with land in a credit -deficient 227
basin may, through the public procurement processes identified 228
in chapter 287 or other established competitive procurement 229
processes, consider a proposal from a private entity applicant 230
for the right to establish a mitigation bank on the local 231
government land, including such lands purchased for conservation 232
purposes, provided acquisition encumbrances do not exist to the 233
contrary. 234
(c) If such a mitigation bank is to be established and 235
operated on local government land, the local government and 236
private applicant must enter into a use agreement that meets the 237
requirements of this paragraph and that requires the private 238
applicant to establish and operate the mitigation bank in 239
conformance with the permitting requirements of s. 373.4136 and 240
the rules adopted thereunder. The use agreement must: 241
1. Include a requirement that the local government 242
landowner assume the role of long -term steward of the property, 243
and state that the landowner will grant a conservation easement 244
or substantially similar recordable inst rument pursuant to s. 245
704.06 in favor of the permitting agency, if a conservation 246
easement or substantially similar recordable instrument 247
acceptable to the permitting agency does not already exist; and 248
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2. Include a requirement for the private applicant to do 249
all of the following: 250
a. Provide bid and performance security instruments for a 251
minimum of 5 percent of the total bid amount to ensure that a 252
use agreement with the local government is executed and a 253
mitigation bank permit is applied for by the pri vate applicant. 254
b. Operate and maintain the mitigation bank until final 255
permit success criteria are met, as permitted by the department 256
or water management district. 257
c. Agree to establish financial assurance for long -term 258
management in an amount agreea ble to the local government 259
landowner and as provided for in rules adopted pursuant to this 260
section and s. 373.4136 for use by the local government as the 261
long-term steward of the land after the mitigation bank final 262
environmental resource permit success c riteria are met. The 263
private sector applicant may also use an endowment to provide 264
financial assurances. 265
d. Acknowledge that denial of the state mitigation bank 266
permit application will terminate the use agreement. 267
e. Acknowledge that failure to obtain the mitigation bank 268
permit within 2 years after the use agreement execution date 269
will terminate the use agreement, unless it is extended for good 270
cause by the local government. 271
(d) Public funds may not be used to fund the financial 272
assurances for constru ction and implementation of the mitigation 273
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bank or for the establishment of the long -term management 274
financial assurances. 275
(e) In determining the number of mitigation bank credits 276
to be awarded to a mitigation bank established pursuant to this 277
subsection, the proposed mitigation bank's location in or 278
adjacent to the local government conservation lands may not 279
increase the uniform mitigation assessment method location 280
factor assessment and scoring value, even if the conservation 281
status of the mitigation ba nk land is improved due to such 282
location. 283
(f) Credit deficiency is confirmed at the time the use 284
agreement is executed by the parties. Once confirmed, the 285
mitigation bank application may proceed, even if the deficiency 286
is relieved. 287
(g) While not requir ed, the department, in coordination 288
with the water management districts, may adopt rules to 289
implement this subsection. 290
Section 3. For the purpose of incorporating the amendment 291
made by this act to section 373.4135, Florida Statutes, in 292
references thereto, paragraphs (a) and (c) of subsection (1) of 293
section 403.9332, Florida Statutes, are reenacted to read: 294
403.9332 Mitigation and enforcement. — 295
(1)(a) Any area in which 5 percent or more of the trimmed 296
mangrove trees have been trimmed below 6 feet in height, except 297
as provided in s. 403.9326(1)(c), (d), (f), (g), and (h), 298
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destroyed, defoliated, or removed as a result of trimming 299
conducted under s. 403.9326 or s. 403.9327 must be restored or 300
mitigated. Restoration must be accomplished by replanting 301
mangroves, in the same location and of the same species as each 302
mangrove destroyed, defoliated, removed, or trimmed, to achieve 303
within 5 years a canopy area equivalent to the area destroyed, 304
removed, defoliated, or trimmed; or mitigation must be 305
accomplished by replanting offsite, in areas suitable for 306
mangrove growth, mangroves to achieve within 5 years a canopy 307
area equivalent to the area destroyed, removed, defoliated, or 308
trimmed. Where all or a portion of the restoration or mitigation 309
is not practicable, as determined by the department or delegated 310
local government, the impacts resulting from the destruction, 311
defoliation, removal, or trimming of the mangroves must be 312
offset by donating a sufficient amount of money to offset the 313
impacts, which must be used fo r the restoration, enhancement, 314
creation, or preservation of mangrove wetlands within a 315
restoration, enhancement, creation, or preservation project 316
approved by the department or delegated local government; or by 317
purchasing credits from a mitigation bank cr eated under s. 318
373.4135 at a mitigation ratio of 2 -to-1 credits to affected 319
area. The donation must be equivalent to the cost, as verified 320
by the department or delegated local government, of creating 321
mangrove wetlands at a 2 -to-1, created versus affected r atio, 322
based on canopy area. The donation may not be less than $4 per 323
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square foot of created wetland area. 324
(c) If mangroves are to be trimmed or altered under a 325
permit issued under s. 403.9328, the department or delegated 326
local government may require miti gation. The department or 327
delegated local government shall establish reasonable mitigation 328
requirements that must include, as an option, the use of 329
mitigation banks created under s. 373.4135, where appropriate. 330
The department's mitigation requirements must ensure that 331
payments received as mitigation are sufficient to offset impacts 332
and are used for mangrove creation, preservation, protection, or 333
enhancement. 334
Section 4. This act shall take effect July 1, 2024. 335