HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 349 Water Resources Management
SPONSOR(S): Environment, Agriculture & Flooding Subcommittee, Sirois
TIED BILLS: IDEN./SIM. BILLS: SB 198
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Environment, Agriculture & Flooding 13 Y, 4 N, As CS Gawin Moore
Subcommittee
2) Agriculture & Natural Resources Appropriations
Subcommittee
3) State Affairs Committee
SUMMARY ANALYSIS
The Department of Environmental Protection (DEP) regulates activities in, on, or over surface waters, as well
as any activity that alters surface water flows, through environmental resource permits (ERPs). ERPs are
required for development or construction activities typically involving the dredging or filling of surface waters,
construction of flood protection facilities, building dams or reservoirs, or any other activities that affect state
waters. Some projects are exempt from the requirement to obtain an ERP if they meet specific statutory restrictions.
Environmental impact mitigation is required under certain circumstances to offset the adverse impacts to
surface waters resulting from the construction activities allowed by an ERP.
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 environmental impacts within a
defined region referred to as a mitigation service area. A mitigation bank consists of a wetland, stream, or other
aquatic resource area that has been restored, established, or preserved to offset such environmental impacts.
Sovereign submerged lands include, but are not limited to, tidal lands, islands, sandbars, shallow banks, and
lands waterward of the ordinary or mean high water line, beneath navigable fresh water or beneath tidally-
influenced waters. The Board of Trustees of the Internal Improvement Trust Fund (Board) is responsible for
determining whether a sale of sovereign submerged lands or a permit related to an activity conducted on
sovereign submerged lands is within the public interest on a case-by-case basis.
The bill authorizes the Board to grant easements on sovereignty submerged lands for mitigation banks to
ensure the protection and restoration of natural resources and to offset the unavoidable impacts of projects
when mitigation banks meet the public interest criteria related to state owned lands.
The bill requires DEP to adopt and modify rules related to mitigation to ensure that the required financial
assurances are equivalent and sufficient to provide for long-term management of permitted mitigation.
Additionally, the bill requires DEP, in consultation with Water Management Districts, to include the rulemaking
required by the bill in existing active rulemaking, or to complete rule development by June 30, 2023.
The bill expands the ERP permitting exemption for certain private and local government-owned docks by
exempting a dock that measures a distance of less than 65 feet along the shoreline if the dock is the only one
on the easement. The bill specifies that such docks must be granted authorization for the use of submerged
lands upon approval by the Board. Additionally, the bill creates a presumption of compliance with any
requirement to minimize adverse environmental impacts for structures associated with a doc k on a parcel of
land that complies with certain ERP permitting exemption requirements.
The bill may have an indeterminate fiscal impact on the state.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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 FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Environmental Resource Permits
The Department of Environmental Protection (DEP) regulates activities in, on, or over surface waters,
as well as any activity that alters surface water flows, through environmental resource permits (ERPs).
ERPs are required for development or construction activities typically involving the dredging or filling of
surface waters, construction of flood protection facilities, building dams or reservoirs, or any other
activities that affect state waters.1 ERP applications are processed by either DEP or one of the state's
water management districts (WMDs) in accordance with the division of responsibilities specified in
operating agreements between DEP and the WMDs.2
ERP Exceptions
Current law provides exceptions from ERP3 permitting for certain types of projects.4 Generally, these
permit exceptions restrict how the project is undertaken, provide size and location requirements, or
provide for maintenance, repair, or replacement of existing structures.5 For example, state law provides
exceptions from ERP permitting for the installation of overhead transmission lines with support
structures that are not constructed in waters of the state and that do not create a navigational hazard,
the installation and maintenance to design specifications of boat ramps on artificial bodies of waters
where certain navigational access is provided, and the construction of private docks of 1,000 square
feet or less of over-water surface area and seawalls in artificially created waterways when such
construction will not violate existing water quality standards, impede navigation, or affect flood control. 6
These exceptions do not relieve an applicant from obtaining permission to use or occupy lands owned
by the Board of Trustees of the Internal Improvement Trust Fund (Board) or a WMD or from complying
with local pollution control programs or other requirements of local governments. 7
ERP Exceptions for Docks
Included among the projects that are exempt from ERP permitting requirements is the installation and
repair of mooring pilings and dolphins associated with private docking facilities or piers ; the installation
of private docks, piers, and recreational docking facilities; or the installation of piers and recreational
docking facilities of local governmental entities when the entity’s activities will not take place in any
manatee habitat.8 This exemption applies when the dock:
 Has 500 square feet or less of over-water surface area for a dock located in an area designated
as Outstanding Florida Waters or 1,000 square feet or less of over-water surface area for a
dock located in an area that is not designated as Outstanding Florida Waters;
 Is constructed on or held in place by pilings or is a floating dock constructed so as not to involve
filling or dredging other than that necessary to install the pilings;
 May not substantially impede the flow of water or create a navigational hazard;
 Is used for recreational, noncommercial activities associated with the mooring or storage of
boats and boat paraphernalia; and
1 South Florida Water Management District, Environmental Resource Permits, https://www.sfwmd.gov/doing-business-with-
us/permits/environmental-resource-permits (last visited Nov. 22, 2021).
2 DEP, Submerged Lands and Environmental Resources Coordination Program, https://floridadep.gov/water/submerged-lands-
environmental-resources-coordination (last visited Nov. 22, 2021).
3 See chs. 373 and 403, F.S.
4 Section 403.813(1), F.S.
5 See s. 403.813(1)(a)-(v), F.S., see also r. 62-330.051, F.A.C.
6 Id.
7 Section 403.813(1), F.S.
8 Section 403.813(1)(b), F.S.
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  Is the sole dock constructed pursuant to this exemption as measured along the shoreline for a
distance of 65 feet, unless the parcel of land or individual lot as platted is less than 65 feet in
length along the shoreline, in which case one exempt dock may be allowed per parcel or lot.
ERP Exceptions for Floating Structures
Additionally, there is an ERP permit exemption for the construction, installation, operation, or
maintenance of floating vessel platforms or floating boat lifts, provided that such structures:
 Float at all times in the water for the sole purpose of supporting a vessel so that the vessel is
out of the water when not in use;
 Are wholly contained within a previously permitted boat slip or do not exceed a combined total
of 500 square feet, or 200 square feet in an Outstanding Florida Water, when associated with a
dock that is exempt from ERP permitting or associated with a permitted dock with no defined
boat slip or attached to a bulkhead on a parcel of land where there is no other docking struc ture;
 Are not used for any commercial purpose or for mooring vessels that remain in the water when
not in use, and do not substantially impede the flow of water, create a navigational hazard, or
unreasonably infringe upon the riparian rights of adjacent property owners;
 Are constructed and used so as to minimize the adverse impacts to submerged lands, wetlands,
shellfish areas, aquatic plant and animal species, and other biological communities, including
locating such structures in areas where seagrasses are least dense adjacent to the dock or
bulkhead; and
 Are not constructed in areas specifically prohibited for boat mooring under conditions of an ERP
permit or other form of authorization issued by a local government. 9
Structures that qualify for this exemption are not required to obtain permission to use or occupy lands
owned by the Board, with the exception of those structures attached to a bulkhead on a parcel of land
where there is no docking structure. These structures may not be subject to any more stringent
permitting requirements, registration requirements, or other regulation by any local government. 10
Environmental Impact Mitigation
Mitigation Regulations
Mitigation serves as the third step in a sequence of permitting actions 11 that must be followed to offset
the adverse impacts to surface waters resulting from the construction activities allowed by an ERP.
When evaluating a proposed project for permitting, the Clean Water Act first requires DEP, as the
permitting agency, to determine if the project would have an adverse impact. If the project has an
adverse impact and there is a practicable alternative, the project must avoid the adverse impacts
altogether and be reconfigured using the alternative. If impacts cannot be avoided, appropriate and
practicable steps must be taken to minimize the impact. If any unavoidable impacts remain, they
require appropriate and practicable mitigation.12
Mitigation usually consists of restoration, enhancement, creation, preservation, or a combination thereof
and is accomplished by providing onsite mitigation, offsite mitigation, or purchasing mitigation credits
from permitted mitigation banks. The ecological benefits of mitigation compensate for the functional
loss resulting from the ERP impact.13 The Uniform Mitigation Assessment Method (UMAM) 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. The UMAM evaluates functions by considering an ecological community’s current
condition, hydrologic connection, uniqueness, location, fish and wildlife utilization, time lag, and
9 Section 403.813(1)(s), F.S., Rule 62-330.428, F.A.C.
10 Id.
11 40 C.F.R. § 230.
12 EPA, Wetlands Compensatory Mitigation, available at https://www.epa.gov/sites/production/files/2015-
08/documents/compensatory_mitigation_factsheet.pdf (last visited Nov. 19, 2021).
13 DEP, Mitigation, https://floridadep.gov/water/submerged-lands-environmental-resources-coordination/content/mitigation (last
visited Nov. 19, 2021).
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 mitigation risk. The UMAM is also used to determine the degree of improvement in ecological value of
proposed mitigation bank activities.14
Mitigation Banking
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 mitigation for unavoidable
environmental impacts within a defined region referred to as a mitigation service area. A mitigation
bank consists of a wetland, stream, or other aquatic resource area that has been restored, es tablished,
or preserved to offset such environmental impacts. The bank is the site itself, and the currency sold by
the banker to the ERP applicant is a credit. The number of potential credits permitted for the bank and
the credit required for ERPs are determined by DEP or a WMD. Mitigation banks are authorized by a
state permit, which is issued by either a WMD or DEP depending on the location of the bank and the
activity it mitigates, and by the United States Army Corps of Engineers. 15
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.16
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 part IV of ch. 373,
F.S., which regulates management and storage of surface waters, and adopted rules;
 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.17
A banker applying for a permit to establish a mitigation bank must provide documentation of financial
responsibility and financial assurance mechanisms for the construction and implementation of the bank,
and the perpetual management and maintenance of the bank. 18 This can be achieved by obtaining a
surety or performance bond, irrevocable letter of credit, or insurance policy. The banker may also
create an escrow account, standby escrow account, trust fund, or standby trust fund to fulfill this
requirement. Fiscal responsibility mechanisms can be paid to a DEP designee, standby trust, or
standby escrow.19 The banker is required to demonstrate continuous fiscal responsibility until all of the
permit conditions are completely satisfied and approved for release by DEP. 20 Further, the financial
responsibility mechanisms must guarantee that the banker will perform all of its obligations under the
permit.21
Seagrasses
14 DEP, The Uniform Mitigation Assessment Method (UMAM), https://floridadep.gov/water/submerged-lands-environmental-
resources-coordination/content/uniform-mitigation-assessment (last visited Nov. 19, 2021).
15 DEP, Mitigation and Mitigation Banking, https://floridadep.gov/water/submerged-lands-environmental-resources-
coordination/content/mitigation-and-mitigation-banking (last visited Nov. 19, 2021).
16 Section 373.4136(1), F.S.; r. 62-342.400, F.A.C.
17 Id.; see also r. 62-340.700, F.A.C.
18 Rule 62-340.700, F.A.C.
19 Id.
20 Id.
21 Id.
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 Seagrasses are grass-like flowering plants that live completely submerged in marine and estuarine
waters.22 Seagrasses occur in protected bays and lagoons as well as in deeper waters along the
continental shelf in the Gulf of Mexico.23 The depth at which seagrasses occur is limited by water clarity
because most species require high levels of light.24 Florida's approximately 2.2 million acres of
seagrasses perform many significant functions, including maintenance of water clarity, stabilization of
the ocean bottom, shelter for marine life, and food for many marine animals and water birds.25
The Board is vested and charged with the duty to acquire, administer, manage, control, supervise,
conserve, protect, and dispose of lands owned by the state. 26 This duty extends to the preservation and
regeneration of seagrass as an essential ecosystem for Florida’s oceans, estuaries, and shorelines. 27
Current law requires the Board to manage state-owned lands in a manner that serves the public
interest.28
Sovereign Submerged Lands
Sovereign submerged lands include, but are not limited to, tidal lands, islands, sandbars, shallow
banks, and lands waterward of the ordinary or mean high water line, beneath navigable fres