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 1668
INTRODUCER: Environment and Natural Resources Committee and Senator Rodriguez
SUBJECT: Seagrass Mitigation Banks
DATE: March 29, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Schreiber Rogers EN Fav/CS
2. CA
3. AP
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 1668 authorizes the Board of Trustees of the Internal Improvement Trust Fund to
authorize leases for seagrass mitigation banks to:
Ensure the preservation and regeneration of seagrass; and
Offset the unavoidable impacts of projects when seagrass banks meet the public interest
criteria related to state-owned lands and state parks and preserves.
The bill states that this authorization does not prohibit mitigation for impacts to seagrass or other
habitats on sovereignty submerged lands, upon approval of the Board of Trustees.
The bill requires the Department of Environmental Protection to modify rules on mitigation
banking to remove any duplicative financial assurance requirements and ensure that permitted
seagrass mitigation banks comply with the federal mitigation banking rules.
II. Present Situation:
Seagrasses
Seagrasses are grass-like flowering plants that live completely submerged in marine and
estuarine waters.1 Seagrasses occur in protected bays and lagoons as well as in deeper waters
1
DEP, Florida Seagrasses, https://floridadep.gov/rcp/seagrass (last visited Mar. 24, 2021).
BILL: CS/SB 1668 Page 2
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 Florida's approximately 2.2
million acres of seagrasses perform many significant functions, including maintaining water
clarity, stabilizing the bottom, sheltering marine life, and providing food for many marine
animals and water birds.4
The Board of Trustees of the Internal Improvement Trust Fund (Board),5 comprised of the
Governor and Cabinet, generally owns and administers all state-owned lands in Florida, unless
otherwise specified.6 The Board has a duty to conserve and improve state-owned land, which
includes the preservation and regeneration of seagrass, deemed by the Legislature to be essential
to the oceans, gulfs, estuaries, and shorelines of the state.7 The term “seagrass” is defined in
statute to mean any of seven specified species of seagrass.8
Sovereign Submerged Lands
Sovereign submerged lands are owned by the state and they include, but are not limited to, tidal
lands, islands, sandbars, shallow banks, and lands waterward of the ordinary or mean high water
line,9 beneath navigable fresh water or tidally-influenced waters.10 Under the State Constitution,
the title to all sovereign submerged lands is held by the state in trust for the people.11 The sale of
such lands may be authorized by law when in the public interest, and the private use of portions
of such lands may be authorized by law when not contrary to the public interest.12
The Board generally holds title to all sovereign submerged lands in the state.13 The Board is
authorized to sell and convey sovereign submerged lands if determined by the Board to be in the
public interest.14 Before conveying sovereign submerged lands, the Board must determine to
what extent such conveyance would interfere with the conservation of wildlife, natural resources,
2
Id.
3
Id.
4
Id.
5
The Governor and Cabinet, Structure of the Florida Cabinet,
http://www.myflorida.com/myflorida/cabinet/structurehistory.html (last visited Mar. 9, 2021).
6
See s. 253.03, F.S.
7
Section 253.04(3), F.S.
8
Section 253.04(3)(a)1., F.S. 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).”
9
See ss. 177.27(15), (16) and 177.28, F.S. 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.
10
Fla. Admin. Code R. 18-21.003(65). “Sovereignty submerged lands” are defined as “those lands including but not limited
to, tidal lands, islands, sand bars, shallow banks, and lands waterward of the ordinary or mean high water line, beneath
navigable fresh water or beneath tidally-influenced waters, to which the State of Florida acquired title on March 3, 1845, by
virtue of statehood, and which have not been heretofore conveyed or alienated. For the purposes of this chapter sovereignty
submerged lands shall include all submerged lands title to which is held by the Board.”
11
FLA. CON., art. X, s. 11.
12
Id.
13
Section 253.03, F.S.
14
Section 253.12, F.S.; see s. 258.42, F.S.
BILL: CS/SB 1668 Page 3
and marine ecosystems.15 Florida law authorizes the Board to adopt rules to administer sovereign
submerged lands.16
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.17 The Department of Environmental Protection (DEP) and the Department of Agriculture
and Consumer Services (DACS) generally act as staff to the Board in the review of proposed
uses of sovereign submerged lands.18 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.19
Mitigation Banking
A mitigation bank is a wetland, stream, or other aquatic resource area that has been restored,
established, or preserved for the purpose of providing compensation for unavoidable impacts to
aquatic resources permitted under certain federal, state, or local programs.20 In Florida,
mitigation banking is part of separate permitting programs at the federal and state levels.
At the federal level, the U.S. Army Corps of Engineers (USACE) administers permitting under
section 404 of the Clean Water Act, which establishes a program to regulate the discharge of
dredged or fill material in waters of the United States, including wetlands.21 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.22
The U.S. Environmental Protection Agency and USACE promulgate federal regulations
establishing environmental criteria, and mechanisms for compensatory mitigation, under section
404.23 The regulations require a permit applicant to take all appropriate and practicable steps to
avoid and minimize adverse impacts to waters of the United States.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 The
15
Section 253.12(2)(a), F.S.
16
Sections 253.03(7) and 253.73, F.S.
17
Fla. Admin. Code R. 18-21.005.
18
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 Mar. 24, 2021); DACS, Aquaculture Submerged Land Leasing, https://www.fdacs.gov/Agriculture-
Industry/Aquaculture/Aquaculture-Submerged-Land-Leasing (last visited Mar. 24, 2021).
19
Fla. Admin. Code R. 18-21.002.
20
U.S. EPA, Mitigation Banks under CWA Section 404, https://www.epa.gov/cwa-404/mitigation-banks-under-cwa-section-
404 (last visited Mar. 25, 2021).
21
33 U.S.C. s. 1344; U.S. EPA, Wetland Regulatory Authority, https://www.epa.gov/sites/production/files/2015-
03/documents/404_reg_authority_fact_sheet.pdf (last visited Mar. 24, 2021).
22
DEP, State 404 Program, https://floridadep.gov/water/submerged-lands-environmental-resources-
coordination/content/state-404-program (last visited Mar. 24, 2021); see DEP, State 404 Program Applicant’s Handbook,
https://www.flrules.org/gateway/reference.asp?No=Ref-12064 (last visited Mar. 24, 2021).
23
40 C.F.R. pt. 230 and 33 C.F.R. pt. 322.
24
40 C.F.R. s. 230.91(c) and 33 C.F.R. s. 322.1(c).
25
U.S. EPA, Wetlands Compensatory Mitigation, available at https://www.epa.gov/sites/production/files/2015-
08/documents/compensatory_mitigation_factsheet.pdf (last visited Mar. 24, 2021).
BILL: CS/SB 1668 Page 4
federal regulations establish requirements and create mechanisms for mitigation approved by an
interagency review team, including mitigation banks allowing permittees to purchase credits to
meet federal requirements for compensatory mitigation.26
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 Florida law authorizes DEP and the water management districts to
require permits authorizing the establishment and use of mitigation banks.33 DEP has adopted
rules that serve as the basis for mitigation bank permitting done by DEP and the water
management districts.34
Creation of a mitigation bank in Florida requires both a permit from DEP or a water management
district, and federal authorization from several agencies led by USACE, in a joint state/federal
interagency review team.35 Through this process, depending on agency approval, mitigation
banks may provide mitigation for permitees under both the federal and state permitting
programs.
Generally, mitigation banking is a practice in which an environmental enhancement and
preservation project is conducted by a public agency or private entity (“banker”) to provide
26
Id. In addition to mitigation banking, mechanisms for mitigation include permittee-responsible mitigation and in-lieu fee
mitigation; 33 C.F.R. pt. 322.
27
DEP, Submerged Lands and Environmental Resources Coordination Program, https://floridadep.gov/water/submerged-
lands-environmental-resources-coordination (last visited Mar. 24, 2021).
28
South Florida Water Management District, Environmental Resource Permits, https://www.sfwmd.gov/doing-business-
with-us/permits/environmental-resource-permits (last visited Mar. 24, 2021).
29
DEP, Submerged Lands and Environmental Resources Coordination Program, https://floridadep.gov/water/submerged-
lands-environmental-resources-coordination (last visited Mar. 24, 2021).
30
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 Mar. 24, 2021).
31
Id.
32
Id. at 10-1, 10-24.
33
Sections 373.4135 and 373.4136, F.S.
34
Fla. Admin. Code Ch. 62-342.
35
DEP, Mitigation Banking Rule and Procedure Synopsis, https://floridadep.gov/water/submerged-lands-environmental-
resources-coordination/content/mitigation-banking-rule-and (last visited Mar. 25, 2021).
BILL: CS/SB 1668 Page 5
mitigation for unavoidable wetland impacts within a defined region (mitigation service area).36
The bank is the site itself, and the currency sold by the banker to the impact permitee is a credit,
representing the wetland ecological value equivalent to the complete restoration of one acre.37
The number of potential credits permitted for the bank, and the credit debits required for impact
permits, are determined by the permitting agencies.38
Mitigation usually consists of restoration, enhancement, creation, and/or preservation, and may
include onsite mitigation, offsite mitigation, regional offsite mitigation areas, or purchasing
mitigation credits from permitted mitigation banks.39 Generally, mitigation preferably involves
enhancing or preserving ecological communities or types of resources that are similar to those
being impacted by the permitted activities; however different types of communities or resources
may be found environmentally acceptable.40 During the permitting of a mitigation bank, the
permitting agencies and interagency review team will determine the mitigation service area: the
geographic region within which the bank could reasonably be expected to offset impacts. 41
Determining the boundaries of a mitigation services area generally starts with the regional
watershed in which the bank lies. The service area may be larger or smaller depending upon the
ecological and hydrological location and value.42 The impact permitting agency determines
whether a particular mitigation bank has sufficient credits and appropriate types of mitigation. 43
The Uniform Mitigation Assessment Method (UMAM)44 provides a standardized procedure for
assessing the ecological functions provided by surface waters, the amount that those functions
are reduced by a proposed impact, and the amount of mitigation necessary to offset that loss.45
The UMAM evaluates functions by considering an ecological community’s current condition,
hydrologic connection, uniqueness, location, fish and wildlife utilization, time lag, and
mitigation risk.46 The UMAM is also used to determine the degree of improvement in ecological
value of proposed mitigation bank activities.47
Under Florida 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;
36
DEP, Mitigation and Mitigation Banking, https://floridadep.gov/water/submerged-lands-environmental-resources-
coordination/content/mitigation-and-mitigation-banking (last visited Mar. 25, 2021).
37
Id.
38
Id.
39
DEP, Mitigation, https://floridadep.gov/water/submerged-lands-environmental-resources-coordination/content/mitigation
(last visited Mar. 25, 2021).
40
DEP, ERP Applicant’s Handbook Volume I, 10-25 (2020), available at
https://www.flrules.org/gateway/reference.asp?No=Ref-12078 (last visited Mar. 24, 2021); 33 C.F.R. s. 332.3(e).
41
DEP, Mitigation Banking Rule and Procedure Synopsis, https://floridadep.gov/water/submerged-lands-environmental-
resources-coordination/content/mitigation-banking-rule-and (last visited Mar. 25, 2021).
42
Id.
43
Id.
44
Fla. Admin. Code Ch. 62-345.
45
DEP, The Uniform Mitigation Assessment Method (UMAM), https://floridadep.gov/water/submerged-lands-environmental-
resources-coordination/content/uniform-mitigation-assessment (last visited Mar. 25, 2021).
46
Id.
47
Id.
BILL: CS/SB 1668 Page 6
Be effectively managed in perpetuity;
Not destroy areas with high ecological value;
Achieve mitigation success; and
Be adjacent t