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 Rules
BILL: CS/CS/CS/SB 1532
INTRODUCER: Rules Committee; Community Affairs Committee; Environment and Natural Resources
Committee; and Senator Brodeur
SUBJECT: Mitigation
DATE: February 14, 2024 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Barriero Rogers EN Fav/CS
2. Barriero Ryon CA Fav/CS
3. Barriero Twogood RC Fav/CS
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/CS/CS/SB 1532 expands the water quality enhancement credit program to allow private
entities to purchase credits. Currently, only governmental entities may purchase water quality
enhancement credits under the program. Specifically, the bill provides that water quality
enhancement credits may be sold to governmental entities seeking to meet an assigned basin
management action plan allocation or reasonable assurance plan or to private or governmental
applicants for the purpose of achieving net improvement or meeting environmental resource
permit performance standards.
Regarding mitigation banking, the bill allows limited use of local government land for private
mitigation banks, provided that the private mitigation banks are located in credit-deficient basins
and would produce certain habitat type credits that are unavailable or insufficient in such basins.
A local government with land in a credit-deficient basin may consider a proposal from a private
entity for the right to establish a mitigation bank on the local government land, including such
lands purchased for conservation purposes, provided acquisition encumbrances do not exist to
the contrary. The bill provides that if such a mitigation bank is to be established and operated on
local government land, the local government and private applicant must enter into a use
agreement that meets certain requirements. The bill does not apply to lands owned by the state or
a water management district.
BILL: CS/CS/CS/SB 1532 Page 2
The bill provides that, in determining the number of mitigation bank credits to be awarded to a
mitigation bank established pursuant to this subsection, the proposed mitigation bank’s location
in or adjacent to the local government conservation lands may not increase the uniform
mitigation assessment method location factor assessment and scoring value, even if the
conservation status of the mitigation bank land is improved due to such location.
II. Present Situation:
Mitigation Banking
Mitigation may be required to offset the adverse impacts caused by regulated activities.1
Mitigation usually consists of restoration, enhancement, creation, or preservation of wetlands,
other surface waters, or uplands.2 Mitigation can be conducted on-site, off-site, through the
purchase of credits from a mitigation bank, or through a combination of approaches, as long as it
offsets anticipated adverse impacts to wetlands and other surface waters.3 Offsite regional
mitigation is mitigation on an area of land off the site of a permitted activity, where an applicant
proposes to mitigate the adverse impacts of only the applicant’s specific activity as a requirement
of the permit, which provides regional ecological value and which is not a mitigation bank.4
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.5 Mitigation banks are alternative to
permittee-responsible mitigation.6 Permittee-responsible mitigation refers to mitigation
undertaken by the permittee to provide compensatory mitigation for which the permittee retains
full responsibility.7 If mitigation credits are not available, state law allows permittee-responsible
mitigation consisting of the restoration and enhancement of lands conservation lands owned by a
local government.8
In mitigation banking, 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.9 The permitting agencies determine the number of potential credits
permitted for the bank and the credit debits required for impact permits.10
1
DEP, ERP Applicant’s Handbook, Vol. I, s. 10.3 (2020), available at
https://www.flrules.org/gateway/reference.asp?No=Ref-12078.
2
Id. at s. 10.3.1.
3
Id. at s. 10.3.1.2.
4
Section 373.403(22), F.S.
5
DEP, Mitigation and Mitigation Banking, https://floridadep.gov/water/submerged-lands-environmental-resources-
coordination/content/mitigation-and-mitigation-banking (last visited Jan. 11, 2024). “Mitigation service area” means the
geographic area within which mitigation credits from a mitigation bank may be used to offset adverse impacts of activities
regulated under this part. Section 373.403(21), F.S.
6
Section 373.4135(1)(b), F.S.
7
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, 2024).
8
Section 373.4135(1)(b), F.S.
9
DEP, Mitigation and Mitigation Banking.
10
Id.
BILL: CS/CS/CS/SB 1532 Page 3
The Uniform Mitigation Assessment Method (UMAM) was established to fulfill the mandate of
s. 373.414(18), F.S., which requires the establishment of a uniform mitigation assessment
method to determine the amount of mitigation needed to offset adverse impacts to wetlands and
other surface waters and to award and deduct mitigation bank credits. UMAM provides a
standardized procedure for assessing the ecological functions provided by wetlands and other
surface waters, the amount that those functions are reduced by a proposed impact, and the
amount of mitigation necessary to offset that loss.11 UMAM evaluates functions through
consideration of an ecological community’s current condition, hydrologic connection,
uniqueness, location, fish and wildlife utilization, and mitigation risk.12 This standardized
methodology is also used to determine the degree of improvement in ecological value of
proposed mitigation bank activities.13
Creation of a mitigation bank in Florida requires both a permit from DEP or a WMD and federal
approval of a mitigation bank instrument from several agencies led by the U.S. Army Corps of
Engineers (USACE), in a joint state/federal interagency review team.14 Requirements for
mitigation bank permits differ between mitigation bank instruments issued by the USACE and
state permits issued by DEP or WMDs. Under the federal process, a mitigation banking
instrument serves as the legal document for the establishment, operation, and use of a mitigation
bank.15 They are approved by an interagency review team, through procedures involving public
notice and comment.16 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.17
Under state 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.18
The applicant must also provide reasonable assurances 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
11
DEP, The Uniform Mitigation Assessment Method (UMAM), https://floridadep.gov/water/submerged-lands-environmental-
resources-coordination/content/uniform-mitigation-assessment (last visited Jan. 12, 2024).
12
Id.
13
Id.
14
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, 2024).
15
33 C.F.R. s. 332.2.
16
33 C.F.R. s. 332.8; 40 C.F.R. s. 230.98.
17
See generally 33 C.F.R. s. 332.8(d)(6); see also 40 C.F.R. s. 230.98(d)(6).
18
Section 373.4136(1), F.S.
BILL: CS/CS/CS/SB 1532 Page 4
Part IV of Chapter 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.19
Water Quality Credit Trading
Water quality credit trading is a market-based approach to attaining water quality improvements
and is used to control and mitigate pollutants from multiple sources that collectively impact
water quality conditions.20 When more stringent regulatory standards are put in place, water
quality trading allows one source of pollution to control a pollutant at levels greater than required
and sell “credits” to another source, which uses the credits to supplement their level of treatment
in order to comply with regulatory requirements. Pollutant reductions achieved through water
quality trading should result in water quality that is as good as—or better than—what would be
achieved through treatment and must not create pollutant hot spots.21
Water quality trading can encourage private investment capital, provide additional resources for
conservation, and serve as a catalyst for developing innovative, practical solutions for improving
water quality at a lower cost.22 Water quality trading has played a critical role in implementing
TMDLs and other water quality-based permit requirements.23
The Florida Statutes provide a framework for water quality credit trading in the state. DEP is the
agency responsible for authorizing water quality credit trading in adopted BMAPs and for
establishing the pollutant load reduction value of water quality credits.24 However, DEP cannot
participate in the establishment of credit prices.25 Sellers of credits are responsible for achieving
the load reductions on which the credits are based and complying with the terms of DEP’s
authorization and any trading agreements into which they have entered; buyers are responsible
for complying with the terms of the water discharge permit.26 Land set-asides and land use
modification not otherwise required by state law or a permit that reduce nutrient loads into
impaired surface waters may be used for water quality credit trading.27
19
Id.; Fla. Admin. Code R. 62-342.400.
20
EPA, Water Quality Trading, https://www.epa.gov/npdes/water-quality-trading (last visited Jan. 10, 2024).
21
Id.
22
Id.
23
Id.
24
Section 403.067(8), F.S.
25
Section 403.067(8)(h), F.S.
26
Section 403.067(8), F.S. Water quality credit trading must be implemented through permits, including water quality credit
trading permits, other authorizations, or other legally binding agreements as establish by DEP rule. Id.
27
Id.
BILL: CS/CS/CS/SB 1532 Page 5
Water Quality Enhancement Areas (WQEAs)
Section 373.4134, F.S., regulates water quality enhancement areas.28 A WQEA is a natural
system29 designed to provide offsite, compensatory, regional treatment within an identified
enhancement service area, for which enhancement credits may be provided.30 A WQEA must
use, create, or improve natural systems to improve water quality and must address contributions
of pollutants or other constituents in the watershed, basin, sub-basin, targeted restoration area,
waterbody, or section of waterbody in which the WQEA is located that do not meet applicable
state water quality criteria.31
The construction, operation, management, and maintenance of a WQEA must be approved
through the state’s environmental resource permitting (ERP) process.32 Part IV of Chapter 373,
F.S., and Chapter 62-330 of the Florida Administrative Code regulate the statewide ERP
program, which is the primary tool used by DEP and water management districts (WMDs) for
preserving natural resources and fish and wildlife, minimizing degradation of water resources
caused by stormwater discharges, and providing for the management of water and related land
resources. The program governs the construction, alteration, operation, maintenance, repair,
abandonment, and removal of stormwater management systems, dams, impoundments,
reservoirs, appurtenant works, and other works such as docks, piers, structures, dredging, and
filling located in, on, or over wetlands or other surface waters.33
To obtain a WQEA permit, an applicant must provide reasonable assurances that the proposed
WQEA will:
 Meet the requirements for issuance of an ERP;
 Benefit water quality in the enhancement service area;
 Achieve defined performance or success criteria for the reduction of pollutants or other
constituents that prevent receiving waters from meeting state water quality criteria;
 Ensure long-term pollutant reduction through effective operation and maintenance in
perpetuity by designation of a responsible long-term maintenance entity supported by an
endowment or other long-term financial assurance sufficient to assure perpetual operation
and maintenance;
 Demonstrate sufficient legal or equitable interest in the property to ensure access and
perpetual protection and management of land within the WQEA; and
 Provide for permanent preservation of the site through a conservation easement.34
28
This section of law may only be implemented after DEP has adopted applicable rules. Section 373.4134(9), F.S. DEP
initiated WQEA rulemaking in November 2023. DEP, WQEA Rulemaking, https://floridadep.gov/water/engineering-
hydrology-geology/content/water-quality-enhancement-area-rulemaking (last visited Jan. 11, 2024).
29
“Natural system” means an ecological system supporting aquatic and wetland-dependent natural resources, including fish
and aquatic and wetland-dependent wildlife habitats. Section 373.4134(2)(c), F.S.
30
Section 373.4134(2)(d), F.S.
31
Section 373.4134(3)(c) and (d), F.S.
32
Section 373.4134(3)(a), F.S.
33
Fla. Admin. Code R. 62-330.010(2).
34
Section 373.4134(4)(a), F.S.
BILL: CS/CS/CS/SB 1532 Page 6
WQEA permits must provide for the assessment, valuation, and award of credits based on units
of pollutant removed.35 DEP determines the award of enhancement credits based on standard
numerical models or analytical tools that establish the WQEA’s ability to remove pollutants or
constituents.36 WQEA applications must include the following information to assist DEP in
determining credits:
 Rainfall data over the longest period of record available collected from the closest site to the
proposed WQEA;
 Anticipated average annual water quality and quantity inflows to the proposed WQEA;
 Site-specific conditions affecting the anticipated performance of the proposed WQEA; and
 Data from collection stations approved by DEP in sites that DEP deems sufficient to
determine flows and local water quality conditions.37
WQEA enhancement credits38 may only be sold to governmental entities39 seeking to meet an
assigned basin management action plan allocation or reasonable assurance plan,40 or for the
purpose of achieving net water quality improvement under s. 373.414(1)(b)3., F.S.,41 after the
governmental entity has provided reasonable assurance of meeting DEP rules for the design and
construction of all onsite stormwater management.42
An