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 198
INTRODUCER: Environment and Natural Resources Committee and Senator Rodriguez
SUBJECT: Seagrass Mitigation Banks
DATE: January 19, 2022 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Collazo Rogers EN Fav/CS
2. CA
3. AP
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 198 authorizes the Board of Trustees of the Internal Improvement Trust Fund (Board of
Trustees) to grant easements on sovereignty submerged lands (SSLs) for mitigation banks that
are permitted under, and meet the public interest criteria in, state law. The bill provides that it
does not prohibit mitigation to offset impacts to seagrass or other habitats on SSLs upon meeting
the public interest criteria. It also directs the Department of Environmental Protection to adopt
and modify rules to ensure that required financial assurances are equivalent and sufficient to
provide for the long-term management of mitigation.
The bill revises the existing Environmental Resource Permitting (ERP) program exceptions for:
 The installation and repair of certain mooring pilings and dolphins, piers, and recreational
docking facilities, to provide that docks authorized under same must be granted authorization
for the use of submerged lands upon approval by the Board of Trustees; and
 Floating vessel platform or floating boat lift structures, to:
o Create a presumption of compliance with any requirement to minimize adverse
environmental impacts, where they are associated with a dock on a parcel of land; and
o Provide that local governments may require only a one-time registration of certain
floating vessel platforms to ensure compliance with listed exemption criteria or with local
electrical or plumbing codes that are no more stringent than the exemption criteria or
address other subjects.
The bill also provides a definition for the term “local government.”
BILL: CS/SB 198 Page 2
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
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
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.
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.
BILL: CS/SB 198 Page 3
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
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;
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).
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).
BILL: CS/SB 198 Page 4
 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
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.
23
Section 373.414(1)(a), F.S.
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).
BILL: CS/SB 198 Page 5
 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
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
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).
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.
BILL: CS/SB 198 Page 6
Mitigation Banking
Generally, mitigation banking is a p