Surface Waters

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A bill to be entitled 1
An act relating to surface waters; amending s. 2
373.414, F.S.; requiring the Department of 3
Environmental Protection to incorporate habitat 4
equivalency analysis in the uniform mitigation 5
assessment method; defining the term "habitat 6
equivalency analysis"; amending s. 403.811, F.S.; 7
requiring that permits for dredging and filling 8
include certain requirements; requiring the department 9
to adopt rules; requiring permitted entities to bear 10
the full cost and responsibility for any damage or 11
destruction caused by dredging, filling, or related 12
activities; amending s. 403.93345, F.S.; revising 13
legislative findings; providing a legislative 14
designation; reenacting s. 373.4137(2)(b) and (4), 15
F.S., relating to mitigation requirements for 16
specified transportation projects, to incorporate the 17
amendment made to s. 373.414, F.S., in a reference 18
thereto; providing an effective date. 19
20
Be It Enacted by the Legislature of the State of Florida: 21
22
Section 1. Paragraph (a) of subsection (18) of section 23
373.414, Florida Statutes, is amended to read: 24
373.414 Additional criteria for activities in surface 25

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waters and wetlands.— 26
(18) The department and each water management district 27
responsible for implementation of the environmental resource 28
permitting program shall develop a uniform mitigation assessment 29
method for wetlands and other surface waters. The department 30
shall adopt the uniform mitigation assessment method by rule no 31
later than July 31, 2002. The rule shall provide an exclusive 32
and consistent process for determining the amount of mitigation 33
required to offset impacts to wetlands and other surface waters, 34
and, once effective, shall supersede all rules, ordinances, and 35
variance procedures from ordinances that determine the amount of 36
mitigation needed to offset such impacts. Once the department 37
adopts the uniform mitigation assessment method by rule, the 38
uniform mitigation assessment method shall be binding on the 39
department, the water management districts, local governments, 40
and any other governmental agencies and shall be the sole means 41
to determine the amount of mitigation needed to offset adverse 42
impacts to wetlands and other surface waters and to award and 43
deduct mitigation bank credits. A water management district and 44
any other governmental agency subject to chapter 120 may apply 45
the uniform mitigation assessment method without the need to 46
adopt it pursuant to s. 120.54. It shall be a goal of the 47
department and water management districts that the uniform 48
mitigation assessment method developed be practicable for use 49
within the timeframes provided in the permitting process and 50

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result in a consistent process for determining mitigation 51
requirements. It shall be recognized that any such method shall 52
require the application of reasonable scientific judgment. The 53
uniform mitigation assessment method must determine the value of 54
functions provided by wetlands and other surface waters 55
considering the current conditions of these areas, utilization 56
by fish and wildlife, location, uniqueness, and hydrologic 57
connection, and, when applied to mitigation banks, the factors 58
listed in s. 373.4136(4). The uniform mitigation assessment 59
method shall also account for the expected time-lag associated 60
with offsetting impacts and the degree of risk associated with 61
the proposed mitigation. The uniform mitigation assessment 62
method shall account for different ecological communities in 63
different areas of the state. In developing the uniform 64
mitigation assessment method, the department and water 65
management districts shall consult with approved local programs 66
under s. 403.182 which have an established mitigation program 67
for wetlands or other surface waters. The department and water 68
management districts shall consider the recommendations 69
submitted by such approved local programs, including any 70
recommendations relating to the adoption by the department and 71
water management districts of any uniform mitigation methodology 72
that has been adopted and used by an approved local program in 73
its established mitigation program for wetlands or other surface 74
waters. Environmental resource permitting rules may establish 75

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categories of permits or thresholds for minor impacts under 76
which the use of the uniform mitigation assessment method will 77
not be required. The application of the uniform mitigation 78
assessment method is not subject to s. 70.001. In the event the 79
rule establishing the uniform mitigation assessment method is 80
deemed to be invalid, the applicable rules related to 81
establishing needed mitigation in existence prior to the 82
adoption of the uniform mitigation assessment method, including 83
those adopted by a county which is an approved local program 84
under s. 403.182, and the method described in paragraph (b) for 85
existing mitigation banks, shall be authorized for use by the 86
department, water management districts, local governments, and 87
other state agencies. 88
(a) In developing the uniform mitigation assessment 89
method, the department shall: 90
1. Seek input from the United States Army Corps of 91
Engineers in order to promote consistency in the mitigation 92
assessment methods used by the state and federal permitting 93
programs. 94
2. Incorporate habitat equivalency analysis. As used in 95
this paragraph, the term "habitat equivalency analysis" means a 96
type of methodology used to determine how much restoration is 97
necessary to compensate for adverse impacts. 98
Section 2. Section 403.811, Florida Statutes, is amended 99
to read: 100

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403.811 Dredge and fill permits issued pursuant to this 101
chapter and s. 373.414.— 102
(1) Permits or other orders addressing dredging and 103
filling in, on, or over waters of the state issued pursuant to 104
this chapter or s. 373.414(9) before the effective date of rules 105
adopted under s. 373.414(9) and permits or other orders issued 106
in accordance with s. 373.414(13), (14), (15), or (16) shall 107
remain valid through the duration specified in the permit or 108
order, unless revoked by the agency issuing the permit. The 109
agency issuing the permit or other order may seek to enjoin the 110
violation of, or to enforce compliance with, the permit or other 111
order as provided in ss. 403.121, 403.131, 403.141, and 403.161. 112
A violation of a permit or other order addressing dredging or 113
filling issued pursuant to this chapter is punishable by a civil 114
penalty as provided in s. 403.141 or a criminal penalty as 115
provided in s. 403.161. 116
(2) Permits for dredging and filling must include a 117
requirement that dredging and turbidity monitoring be performed 118
by separate and distinct entities. The department shall adopt 119
rules to implement this subsection. 120
(3) Permitted entities shall bear the full cost of and 121
responsibility for any damage or destruction caused by dredging, 122
filling, or related activities. 123
Section 3. Present subsections (5) through (12) of section 124
403.93345, Florida Statutes, are redesignated as subsections (6) 125

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through (13), respectively, and a new subsection (5) is added, 126
and present subsection (4) is amended to read: 127
403.93345 Coral reef protection.— 128
(4)(a) The Legislature finds that coral reefs are valuable 129
natural resources that contribute ecologically, aesthetically, 130
and economically to the state. Therefore, the Legislature 131
declares it is in the best interest of the state to clarify the 132
department's powers and authority to protect coral reefs through 133
timely and efficient recovery of monetary damages resulting from 134
vessel groundings and anchoring-related injuries. 135
(b) The Legislature further finds that coral reefs, if 136
healthy and effectively managed, can help mitigate the risks and 137
related loss and damage from floods, climate change, and natural 138
disasters. The Legislature recognizes that studies have shown 139
that healthy coral reefs can protect coastal properties from 140
such climate change-related risks and disaster events, including 141
storms, high wave events, sea level rise, and flooding. The 142
Federal Emergency Management Agency (FEMA) is responsible for 143
responding to natural disasters and providing technical and 144
financial hazard mitigation support, primarily distributed as 145
grant funding through FEMA's hazard mitigation assistance 146
programs. Coral reef restoration for risk reduction, known as 147
CR4, is an active restoration strategy with the aim of 148
increasing the structural integrity and complexity of coral reef 149
ecosystems to attenuate wave energy and reduce coastal flooding. 150

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Legislative recognition of coral reefs as critical natural 151
infrastructure and a nature-based solution demonstrates 152
political support for nature-based solutions. 153
(c) It is the intent of the Legislature that the 154
department be recognized as the state's lead trustee for coral 155
reef resources located within waters of the state or on 156
sovereignty submerged lands unless preempted by federal law. 157
This section does not divest other state agencies and political 158
subdivisions of the state of their interests in protecting coral 159
reefs. 160
(5) The Legislature designates coral reefs as critical 161
natural infrastructure and as a nature-based solution that helps 162
mitigate climate change-related risks and disaster events, 163
including, exposure to storms, high wave events, sea level rise, 164
and flooding. 165
Section 4. For the purpose of incorporating the amendment 166
made by this act to section 373.414, Florida Statutes, in a 167
reference thereto, paragraph (b) of subsection (2) and 168
subsection (4) of section 373.4137, Florida Statutes, are 169
reenacted to read: 170
373.4137 Mitigation requirements for specified 171
transportation projects.— 172
(2) Environmental impact inventories for transportation 173
projects proposed by the Department of Transportation or a 174
transportation authority established pursuant to chapter 348 or 175

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chapter 349 shall be developed as follows: 176
(b) The environmental impact inventory must include a 177
description of habitat impacts, including location, acreage, and 178
type; the anticipated mitigation needed based on the functional 179
loss as determined through the uniform mitigation assessment 180
method adopted by the Department of Environmental Protection by 181
rule pursuant to s. 373.414(18); identification of the proposed 182
mitigation option; state water quality classification of 183
impacted wetlands and other surface waters; any other state or 184
regional designations for these habitats; and a list of 185
threatened species, endangered species, and species of special 186
concern affected by the proposed project. 187
(4) Before March 1 of each year, each water management 188
district shall develop a mitigation plan to offset only the 189
impacts of transportation projects in the environmental impact 190
inventory for which a water management district is implementing 191
mitigation that meets the requirements of this section, 33 192
U.S.C. s. 1344, and 33 C.F.R. part 332. The water management 193
district mitigation plan must be developed in consultation with 194
the Department of Environmental Protection, the United States 195
Army Corps of Engineers, the Department of Transportation, 196
participating transportation authorities established pursuant to 197
chapter 348 or chapter 349, other appropriate federal, state, 198
and local governments, and other interested parties, including 199
entities operating mitigation banks. In developing such plans, 200

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the water management districts shall use sound ecosystem 201
management practices to address significant water resource needs 202
and consider activities of the Department of Environmental 203
Protection and the water management districts, such as surface 204
water improvement and management (SWIM) projects and lands 205
identified for potential acquisition for preservation, 206
restoration, or enhancement, and the control of invasive and 207
exotic plants in wetlands and other surface waters, to the 208
extent that the activities comply with the mitigation 209
requirements adopted under this part, 33 U.S.C. s. 1344, and 33 210
C.F.R. part 332. The water management district mitigation plan 211
must identify each site where the water management district will 212
mitigate for a transportation project. For each mitigation site, 213
the water management district shall provide the scope of the 214
mitigation services; provide the functional gain as determined 215
through the uniform mitigation assessment method adopted by the 216
Department of Environmental Protection by rule pursuant to s. 217
373.414(18); describe how the mitigation offsets the impacts of 218
each transportation project as permitted; and provide a schedule 219
for the mitigation services. The water management districts 220
shall maintain records of costs incurred and payments received 221
for providing these services. Records must include, but are not 222
limited to, planning, land acquisition, design, construction, 223
staff support, long-term maintenance and monitoring of the 224
mitigation site, and other costs necessary to meet the 225

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requirements of 33 U.S.C. s. 1344 and 33 C.F.R. part 332. To the 226
extent moneys paid to a water management district by the 227
Department of Transportation or a participating transportation 228
authority are greater than the amount spent by the water 229
management districts in providing the mitigation services to 230
offset the permitted transportation project impacts, these 231
moneys must be refunded to the Department of Transportation or 232
participating transportation authority. The mitigation plan 233
shall be submitted to the water management district governing 234
board or its designee for review and approval. At least 14 days 235
before approval by the governing board, the water management 236
district shall provide a copy of the draft mitigation plan to 237
the Department of Environmental Protection and any person who 238
has requested a copy. Subsequent to the governing board 239
approval, the mitigation plan shall be submitted to the 240
Department of Environmental Protection for approval. The plan 241
may not be implemented until it is submitted to, and approved in 242
part or in its entirety by, the Department of Environmental 243
Protection. 244
(a) Specific projects may be excluded from the mitigation 245
plan, in whole or in part, and are not subject to this section 246
upon the election of the Department of Transportation, a 247
transportation authority if applicable, or the appropriate water 248
management district. The Department of Transportation or a 249
participating transportation authority may not exclude a 250

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transportation project from the mitigation plan if mitigation is 251
scheduled for implementation by the water management district in 252
the current fiscal year unless the transportation project is 253
removed from the Department of Transportation's work program or 254
transportation authority funding plan, the mitigation cannot be 255
timely permitted to offset the impacts of a Department of 256
Transportation project identified in the environmental impact 257
inventory, or the proposed mitigation does not meet state and 258
federal requirements. If a project is removed from the work 259
program or the mitigation plan, costs spent by the water 260
management district before removal are eligible for 261
reimbursement by the Department of Transportation or 262
participating transportation authority. 263
(b) When determining which projects to include in or 264
exclude from the mitigation plan, the Department of 265
Transportation shall investigate using credits from a permitted 266
mitigation bank before those projects are submitted for 267
inclusion in a water management district mitigation plan. The 268
Department of Transportation shall exclude a project from the 269
mitigation plan if the investigation undertaken pursuant to this 270
paragraph results in the conclusion that the use of credits from 271
a permitted mitigation bank promotes efficiency, timeliness in 272
project delivery, cost-effectiveness, and transfer of liability 273
for success and long-term maintenance. 274
Section 5. This act shall take effect July 1, 2026. 275