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by Thomas T. Ankersen, Legal Skills Professor & Director, UF Law Conservation Clinic & Florida Sea Grant Legal Program

Coastal policy received a significant amount of attention in the Florida legislature this year, with several bills and budget items making their way to the Governor’s desk and others dying in committees. Those that have made it to the Governor are either signed into law, vetoed, or become law without the Governor’s signature. This update describes those bills and appropriations of particular relevance to the CCS community in the areas of water quality and coastal resiliency and provides additional policy context, including links to references.

Legislation
Projects in the State Budget

Legislation

WATER QUALITY

SB 1426/HB 965: Water Quality Enhancement Areas (On the Governor’s Desk)

Summary

This bill expands the role that water quality offset credit trading plays in Florida pollution control law, particularly for non-point sources, and somewhat mimics Florida’s framework for wetland mitigation banking. It authorizes the creation of “water quality enhancement areas” and an associated credit trading regime to enable impacts within the same watershed to be offset by the WQEA. WQEAs are defined to be “natural systems” constructed, operated or maintained to provide offsite regional water quality treatment. The law provides a means for state, regional, and local governmental entities to comply with Basin Management Action Plans (BMAPs) and Reasonable Assurance Plans (RAPs), or where ambient water quality standards are not being met, after a demonstration that the entity is meeting the requirements for onsite stormwater management. The owner of a WQEA can sell credits to a governmental entity for water quality improvements the WQEA generates that exceed that which is required by the BMAP, RAP or where ambient water quality standards are not being met. The bill limits the use of WQEAs to the watershed in which the WQEA is located in order to ensure that the benefits pertain to that watershed. DEP must establish an enhancement service area for one or more WQEAs that conforms to the area where adverse impacts are to be mitigated by the WQEA. Once established, the owner of a WQEA can then sell credits to government entities to help to meet their compliance obligations. WQEAs can be located outside the jurisdiction of a local government can still be used by that local government to offset impacts within the local government, provided the WQEA is in the same watershed. The bill includes performance requirements and financial guarantees similar to those required for mitigation banking.  Similarly, the applicant for a WQEA must demonstrate sufficient legal or equitable interest in the land comprising the WQEA to ensure access and perpetual protection and management. Before the statute becomes operational DEP must undertake rulemaking to implement it.

Implications

The new law raises some interesting questions. Can an existing or future wetland mitigation bank also be a WQEA? The statute is silent on this point, but there have been efforts elsewhere to promote water quality trading through wetland mitigation. Does this statute open the door for water quality credit trading on submerged lands? While the statute does not read as if submerged lands were contemplated, there is considerable interest in the role of aquaculture as a water quality enhancement feature on submerged lands. And nutrient credits are currently being awarded for living shorelines along the Chesapeake Bay. Preempting state-owned submerged lands for mitigation banking has not been looked on favorably by the legislature to date, evidenced by the defeat of proposals to do just that in the last two legislative sessions (See SB 198/HB 349 described below), and the WQEA legislation includes similar  language that would seemingly make it difficult to apply this policy tool on state-owned lands. However, there are significant tracts of privately owned submerged lands in Florida that could serve as WQEA pilot projects if conditions were otherwise appropriate, in theory generating tradeable credits if durable nutrient removal can be demonstrated.  

CS/CS/CS/HB 967: Golf Course Best Management Practices Certification (Awaits Governor’s signature)

This directs FDEP and UF IFAS turf grass science program to create a best management practices (BMP) certification program for fertilizer application on golf courses, and preempts local governments from regulating “water and fertilizer use blackout periods or restrictions” as to persons (not golf courses) who become certified, unless a state of emergency has been declared. Under the statute, It would appear that BMPs must be community specific, or that golf course’s must align their certification with “the comprehensive best management practices for that specific community.” Certification does not, however, absolve the person from complying with the requirements of a Basin Management Action Plan, if applicable. FDEP is required to adopt rules to administer the law.

Interestingly, under this bill, certification runs with the person seeking certification, and not the golf course. Thus, it would seem that golf courses that do not retain a certified person, are not subject to the bill, including its exemptions. While the bill appears to emphasize BMPs for fertilizer application, it is noteworthy that it also exempts local water use restrictions for certified persons (not golf courses). Other statutes governing governing local fertilizer and water use regulation may also apply, however.

SB 856/HB 309: Private Provider Inspections of Onsite Sewage Treatment and Disposal Systems (Awaits Governor’s signature)

In 2021, DEP took over Onsite Sewage Treatment and Disposal Systems from the Department of Health. DEP rules require a compliance inspection of new Systems and substantial modification of existing systems by DEP. DEP administers the inspection program with its own staff. This bill allows OSTDS owners to hire a qualified private contractor in lieu of DEP to conduct inspections, subject to various requirements. DEP reserves the right of audit.

SB 198/HB 349: Seagrass Mitigation Banks (Died in committee)

This bill, introduced for a second year, would have allowed creation of seagrass mitigation banks on state-owned submerged lands to offset loss of seagrass required by coastal development projects. The proposal engendered considerable concern due to uncertainties of the efficacy and longevity of sea grass restoration, and concerns over privatizing the use of state-owned submerged lands. The CCS Coastal Policy Lab drafted a comprehensive and widely circulated analysis of the bill in the context of mitigation banking more generally and reviewed sea grass mitigation banking efforts elsewhere.

Other bills which failed include:

SB 604/HB 393: Safe Waterways Act (Died in committee)

This bill would have imposed state and local health advisory notice requirements to warn the public of unsafe swimming conditions due to fecal coliforms. 

SB 832/HB 561: Implementation of the Blue Green Algae Task Force Recommendations (Did not pass)

This bill would have built upon the the 2021 Clean Waterways Act, which implemented many, but not all, of the Task Force’s Recommendations.  Nevertheless, funds were provided in the appropriations bill, discussed below, to continue the work of the Task Force.

HB 1125: Onsite Sewage Treatment and Disposal System Inspections (Died in committee)

SB 1416/HB 1129: Requiring DEP to adopt rules for mangrove planting and restoration (Did not pass)

RESILIENCY

CS/HB 7053: Statewide Flooding and Sea Level Rise Resilience (Awaits Governor’s signature)

This bill builds from the Resilient Florida Grants Program, passed by the 2021 legislature. It establishes a “Statewide Office of Resilience” within the Governor’s Office, headed by a Chief Resilience Officer, appointed by the Governor. In general, the duties of the CRO are to coordinate flood resilience and mitigation across state agencies and among federal, state and local agencies, as well as non-governmental entities. The statute charges the Office with coordinating with the Florida Flood Hub for Applied Research and Innovation at the University of South Florida, established by the 2021 legislation, in the development of flood vulnerability and sea level rise data sets and tools. In coordination with the CRO, The Department of Environmental Protection is required to produce an annual progress report to the Governor and the Legislature. The bill requires FDOT to develop a “resilience action plan” by June 30, 2023 to recommend design changes to promote resilience, assess the state highway system for its resilience to flooding and sea level rise, establish project priorities, and create a statewide data base of vulnerable assets, among other things.

The 2021 grants program statute was amended, adding definitions for “preconstruction activites” and “regionally significant assets” (critical assets, as previously defined, that span multiple geopolitical boundaries). The amendments clarify that inland flooding is also subject to the statute, and includes specific requirements for modeling and incorporating rainfall induced flooding in vulnerability assessments. Notably, deadlines imposed on DEP by the 2021 law were pushed back by one year. This includes the comprehensive statewide flood vulnerability and sea level rise data set (from July 1, 2022 to July 1, 2023) and comprehensive statewide flood vulnerability and sea level rise assessment which depends on the data set (from July 1, 2023 to July 1, 2024). The statute adds more detail on grant funding eligibility, and requires the DEP to include and rank all eligible projects submitted by the local and regional governments.

Finally, the new law expands governmental entities eligible to submit projects for funding to include independent special districts (special purpose elected entities that are budgetarily independent of counties and municipalities)  such as inland navigation districts, inlet management districts, water and sewer districts, and air and sea port districts, as well as erosion control districts, drainage districts and regional water supply authorities. Based on its work with the Captiva Erosion Projection District and the West Coast Inland Navigation District, the CCS Coastal Policy Lab drafted a widely shared analysis of the important role of these districts in planning and operationalizing resilience in Florida, noting their absence from the 2021 law.  

SB 442/HB 571: Land Authorities (Awaits Governor’s signature)

This bill authorizes local government “land authorities” to assist in administering grants for residential flood and sea-level rise mitigation projects, including grants for the elevation of structures above minimum flood elevations; the demolition and reconstruction of structures above minimum flood elevations; and the acquisition of land with structures at risk of flooding. “Land Authorities” are units of county government with unique statutory powers and responsibilities governed by Boards of County Commissioners. They are only created in counties that within an “Area of Critical State Concern” established under Chapter 380, Florida Statutes. There are only 4 such areas designated: Big Cypress Area (Collier, Miami Dade and Monroe), Green Swamp Area (Polk, Lake), City of Key West and the Florida Keys (Monroe), and Apalachicola Area (Franklin). Thus, only those counties are eligible to have Land Authorities. The staff report to the legislation includes a section describing the Monroe County Land Authority. Thus, it is likely that this bill was largely intended to ensure the Monroe Land Authority’s ability to assist with resiliency related grants administration.

SB 1434/HB 1077: Public Financing of Potentially At-Risk Structures & Infrastructure  (Died in the House)

State-financed projects that are within any area that is at risk due to future sea level rise, not just structure and infrastructure within the coastal building zone, would have been required to conduct a Sea Level Impact Projection (SLIP) study before commencing construction.

State Budget

Florida lawmakers pass $112.1 billion budget to end session on March 14. The budget represents the consensus between the House and the Senate for the state’s financial priorities, and to some extent its policy priorities. These budget proposals remain subject to the Governor’s line item veto.

Significant projects related to coastal systems in the accepted budget proposals of HB 5001: General Appropriations Act are listed below. Major categories include harmful algal blooms, water quality, restoration aquaculture, and habitat restoration, sea level rise and resiliency, and other marine and coastal related appropriations.

Harmful Algae Blooms

Funds in Specific Appropriation 1646 are provided to the Department of Environmental Protection for the purpose of supporting the evaluation and implementation of innovative technologies and short-term solutions to combat or clean up harmful algal blooms and nutrient enrichment of Florida’s fresh waterbodies, including lakes, rivers, estuaries, and canals. Funds may be used for the Department’s red tide emergency grant program to support local governments in cleaning beaches and coastal areas to  minimize the impacts of red tide to residents and visitors. Funds may also be used to implement water quality treatment technologies, identified by the Department, near water control structures in Lake Okeechobee.

Funds in Specific Appropriation 1640 are provided for increased water quality monitoring, creation of a water quality public information portal, and for the establishment of the Blue-Green Algae Task Force. Funds may be used for administration and planning costs. The task force will support key funding and restoration initiatives to expedite nutrient reduction in Lake Okeechobee and the St. Lucie and Caloosahatchee estuaries. The task force will identify priority projects for funding that  are  based on scientific data and build upon Basin Management Action Plans (BMAPs) to provide the largest and most meaningful nutrient reductions in key waterbodies, as well as make recommendations for regulatory changes. $4,000,000 in nonrecurring funds is provided to the Department of Environmental Protection to continue to expand statewide water quality analytics for the nutrient over-enrichment analytics assessment and water quality information portal.

Funds in Specific Appropriation 1645 are provided to the Department of Environmental Protection for a red tide emergency grant program to support county governments in cleanup of biological debris to minimize the impacts of red tide to residents and visitors.

Water Quality

Funds in Specific  Appropriation 1690 shall be used for National Estuary Program activities necessary to achieve the total maximum daily load adopted by the Department of Environmental Protection for the Indian River and Banana River Lagoons. The Indian River Lagoon National Estuary Program shall report to the department annually on use of these funds.

Funds in Specific Appropriation 1642 are provided for operations and  maintenance for five Indian River Lagoon Land/Ocean Biogeochemical Observatory water quality instruments for the St. Lucie Estuary and surrounding Indian River Lagoon areas (recurring base appropriations project).

The funds in Specific Appropriation 1650C are provided to the South Florida Water Management District for Caloosahatchee River water quality improvement projects. These projects should be consistent with the Caloosahatchee River Basin Management Action Plan and provide the most benefit toward achieving total maximum daily loads for the river and estuary basin.

From the funds in Specific Appropriation 1650A, $12,000,000 in nonrecurring funds from the General Revenue Fund is provided for Brevard County South Beaches WWTF Conversion to AWT (Senate Form 2713). From the fund in Specific Appropriation 1650A, $14,000,000 in nonrecurring funds from the General Revenue Fund is provided for Brevard County Riverside Drive Force Main Improvements (Senate Form 2714). From the funds in Specific Appropriation 1650A, $12,000,000 in nonrecurring funds from the General Revenue Fund is provided for Cocoa Beach Muck Dredging and Capping (HB 3885)(Senate Form 1340).

From the funds in Specific Appropriation 1779, $20,000,000 in nonrecurring funds from the General Revenue Fund is provided for projects, including septic to sewer and wastewater projects, that will improve the water quality of Biscayne Bay.

From the funds in Specific Appropriation 1641, $250,000 in recurring funds from the Land Acquisition Trust Fund (recurring appropriations project) and $750,000 in non-recurring funds from the General Revenue Fund (HB 3119)(Senate Form 1502) are provided for the Ocean Research and Conservation Association Water Quality Monitoring Systems – Kilroy Network Expansion.

RESTORATION Aquaculture and Habitat Restoration

Funds in Specific Appropriation 1762A are provided from general Revenue Fund for coral reef restoration and protection efforts.

Funds in Specific Appropriation 1934H are provided for the A Billion Clams for Charlotte Harbor (HB 2601 / Senate Form 1956).

Funds in Specific Appropriation 1934I are provided for local governments and nonstate entities for the Gulf Shellfish Institute – Clams & Seagrass Restoration – Three Estuaries SW Florida (HB 9161 / Senate Form 1510).

From the funds in Specific Appropriation 1760A, $4,000,000 in nonrecurring funds from the General Revenue Fund is provided to the Department of Environmental Protection for the purpose of establishing a pilot study to determine the effectiveness of bivalves at reducing nutrients in the waters of the state. The pilot study may also include an analysis of whether planting bivalves as part of a seagrass restoration project increases the short term and long-term viability of such project.

From the funds in Specific Appropriation 1644A, $495,000 in nonrecurring funds from the General Revenue Fund is provided for the Pensacola and Perdido Bays Estuary Program – Oyster Restoration and Community Grant Program (HB 3383)(Senate Form 2320).

From the funds in Specific Appropriation 1644B, $950,000 in nonrecurring funds from the General Revenue Fund is provided for the Manatee County Water Quality Improvement with Native Oyster and Clam Restoration (HB 9255)(Senate Form 2114).

Funds in Specific Appropriation 1916A are provided for Mote Marine Coral Restoration (HB 2409)(Senate Form 1079).

From the funds in Specific Appropriation 1904, $950,000 in nonrecurring funds from the General Revenue Fund is provided for the Coastal Conservation Association Inshore Reef Project Tampa Bay (HB 2465)(Senate Form 1429).

Sea Level Rise & Resiliency

Funds in Specific Appropriation 1775A are provided to the Department of Environmental Protection for the Statewide Flooding and Sea Level Rise Resilience Plan, years one through three, as submitted to the Governor, the President of the Senate, and the Speaker of the House of Representatives on December 1, 2021, pursuant to section 380.093(5), Florida Statutes. In the event that projects included in the plan are unable to continue, the department may include a revised list of projects in its Statewide Flooding and Sea Level Rise Resilience Plan submission on December 1, 2022.

Funds in Specific Appropriation 1760B are provided for migrating and upgrading the Sea Level Impact Projection (SLIP) Study Tool, regional living shoreline restoration suitability modeling, and sea level rise modeling.

Other

From the funds in Specific Appropriation 1768, $320,000 in nonrecurring funds from the General Revenue Fund is provided for the Florida Ocean Alliance – Expanding Florida’s Blue Economy Development of a Blue Economy Strategy (HB 2819)(Senate Form 1868). The proposed project will expand the 2020 efforts to formulate a Blue Economy for Florida by updating the contributions and significant impact of ocean and coastal industries on the state’s economy. And it will identify the potential for expansion in marine-related economic sectors to foster job growth.

Grants and aids to local governments and nonstate entities – fixed capital outlay, Florida Coastal Zone Management Program from federal grants trust fund.

The funds in Specific Appropriation 1935A are provided to enhance and expand the network of acute care facilities to treat injured and distressed manatees, restore manatee access to springs, provide habitat restoration in manatee concentrated areas, provide manatee rescue and recovery  efforts, and implement pilot projects including supplemental feeding trials.