Inching the Ball Ahead: Embedding Coverage Preferences for Nature-Based mostly Options into Florida Regulation – Cyber Tech

This weblog is a part of a sequence referred to as Authorized Currents, analyzing well timed matters and traits in Florida marine and coastal legislation and coverage.

The time period “nature-based options” (NBS) has turn into a part of the forex of latest coastal conservation.  The time period is now discovering its method into Florida’s coverage framework for coastal governance, a part of the State’s embrace of the broader coverage paradigm of resiliency.

Whereas many would argue that “nature-based options” could also be a brand new time period for an previous thought, there may be little doubt that it has achieved a brand new stage of urgency as Florida’s coastlines proceed to recede and expertise catastrophic storm occasions.  The State’s coverage method to NBS is demonstrated by the regulatory course of and thru devoted or preferential funding streams. Each have not too long ago picked up steam in Florida.

NBS in Florida Regulation

 The time period “nature-based options” made its first look within the Florida Statutes in 2021, with the State’s broad embrace of coastal resiliency. Part 380.093 creates the Resilient Florida Grant Program and directs the Florida Division of Environmental Safety (FDEP) to arrange a Statewide Flooding and Sea Stage Rise Resilience Plan.¹  The Resilient Florida Grant Program is a extremely structured method that sends cash to native and regional governments to systematically assess their vulnerabilities to flooding and sea stage rise. This system funds vulnerability assessments, and resiliency-focused tasks recognized by these assessments.² Among the many actions that counties and municipalities will pay for with grant funds underneath the 2021 statute are “[f]easibility research and the price of allowing for nature-based options that cut back the influence of flooding and sea stage rise.”³ This seems to mark NBS’s first look in Florida legislation as a named coverage assemble.  In 2024, this provision was amended, presumably to make clear the legislature’s intent that each feasibility research for nature-based options and the price of allowing for tasks utilizing nature-based options have been eligible for funding.⁴

Armed with a statutory mandate, FDEP initiated rulemaking to develop the methodology for rating tasks submitted by native and regional governments for Resilient Florida Grant Program funding, adopting it as Florida Administrative Code Rule 62S-8 in 2022.⁵  The adopted methodology creates a tiered scoring system that assigns factors for evaluating and rating submitted proposals.  A complete of 100 factors may be awarded throughout 4 tiers.  Tier 2, capped at 30 factors, permits as much as 3.75 factors for “environmental habitat enhancement or nature-based options for resilience.” ⁶

Moreover, the adopted methodology awards a complete of seven.5 factors if the proposal demonstrates that the mission might be “cost-effective.” ⁷ Among the many concerns that can be utilized for figuring out cost-effectiveness is “[t]he direct and oblique financial worth of ecosystem companies offered by pure or nature-based options.” ⁸  The inclusion of a monetized ecosystem companies valuation metric advances the hassle to place nature-based options on a par with conventional infrastructure, a objective scientists and economists have been engaged on for a while.

After all, to award factors for “nature-based options” it grew to become essential to outline it. Accordingly, FDEP adopted the next definition:

“‘Nature-based options’ are actions that depend on pure processes to guard, restore, and sustainably handle ecosystems, in addition to options that deal with socio-environmental challenges utilizing pure sources and processes.”⁹

Whereas there are myriad policy-relevant definitions of NBS throughout the conservation and resiliency coverage literature,¹⁰ FDEP’s definition is usually per most and seems just like the definition employed by the U.S. Division of the Inside.¹¹  Some, corresponding to these employed by Federal Emergency Administration Company (FEMA), ¹² and the Nationwide Ocean Service,¹³ are extra specific of their embrace of NBS as a sort of resiliency infrastructure, one thing solely implicit within the second phrase of the FDEP definition.

To find out the extent to which the Resilient Florida Grants Program has awarded proposals that incorporate NBS would require a deep dive into the preliminary spherical of awarded grants and the grant scoring for all proposals. Nevertheless, in extremely aggressive grant competitions, a number of factors could make a major distinction.

NBS and Florida’s Latest Space of Crucial State Concern

NBS made its second statutory look in 2023, this time in geographically particular laws creating the Brevard Barrier Island Space of Crucial State Concern (ACSC).¹⁴  This laws is exceptional in that it employed a program from the 1970’s period of environmental and land use laws that took a regional method to environmental governance.¹⁵  The motivation behind creating a brand new ACSC was concern over the way forward for an island and its seashores, which harbors a few of the most in depth sea turtle nesting habitats on the earth.  To deal with this concern, the Legislature adopted the ACSC designation as an acceptable coverage framework to guard a charismatic and world-class useful resource.  To implement the brand new ACSC, the statute establishes a sequence of “guiding rules” meant to information planning, applications, and regulatory choices in any respect ranges of presidency.  Included amongst these is one which directs businesses and items of presidency to assist “progressive, nature-based options together with dwelling shorelines, and freshwater and coastal wetland restoration.”¹⁶

NBS and The Proposed Mangrove Planting and Safety Act

One invoice launched within the 2024 legislative session that didn’t turn into legislation would have represented a major step within the State’s motion towards institutionalizing NBS as a coverage choice in coastal waters. The proposed “Mangrove Planting and Safety Act” handed the Florida Home unanimously however died within the Senate Guidelines Committee.¹⁷

The invoice aimed to amend the present Mangrove Trimming and Preservation Act,¹⁸ and  require FDEP to undertake guidelines for mangrove planting and restoration to handle vital erosion in State designated Areas of Crucial State Concern (based mostly on the present vary of mangroves, this would come with the Florida Keys ACSC, the Large Cypress ACSC and the newly created Brevard Barrier Islands ACSC). The invoice additionally sought to guard barrier and spoil islands with no particular geographic constraints, and to help Everglades restoration and Biscayne Bay revitalization efforts.¹⁹ . The invoice would additionally require FDEP to develop design choices for dwelling shorelines within the Biscayne Bay Aquatic Protect.

It isn’t clear why the invoice restricted its rulemaking attain to 3 Areas of Crucial State Concern as a substitute of the complete vary of mangroves, particularly since vital erosion will not be restricted to ACSC, and the rulemaking provision seems to incorporate barrier islands and spoil islands all through the state. It’s also price noting that FDEP already has guidelines governing estuarine shoreline restoration extra usually, and the necessity to single out mangroves for particular rulemaking, aside from different shoreline ecosystems that present related resiliency advantages, can be not fully clear. The workers evaluation accompanying the invoice doesn’t make clear these questions.²⁰

Nonetheless, emphasizing the safety, restoration, and even development of mangrove techniques makes for sound resilience coverage, given their position in storm surge safety, amongst different advantages. Underneath the Invoice, FDEP can be required, on a statewide foundation, to establish susceptible private and non-private properties alongside the shoreline and encourage partnerships with native governmental entities to create “native mangrove safety and restoration zone applications.”²¹

FDEP would even be required to create allowing incentives and encourage the usage of “new methods for dwelling shorelines and nature-based options.”²² Right here the invoice language doesn’t seek advice from mangroves, so conceivably this might apply to different shoreline ecosystems corresponding to salt marsh, although that may belie the invoice title.

Importantly, the invoice encourages partnerships with native governments to develop tasks for coastal safety by the Resilient Florida Grant Program,²³ maybe making a coverage choice for mangrove-related nature-based options inside a income stream that’s devoted to capital infrastructure tasks.

Lastly, in session with the Division of Insurance coverage Agent and Company Providers, FDEP can be tasked with conducting a research to find out the worth of mangroves and different nature-based options for flood danger discount to cut back insurance coverage premiums and enhance native authorities’s rankings underneath the FEMA Neighborhood Score System – a program designed to cut back property proprietor premiums by neighborhood flood danger discount actions.²⁴ Whereas quite a few such research have already been performed at completely different scales,²⁵ a state-endorsed research would additional justify incorporating ecosystem companies valuation into the resiliency economics dialogue.

Latest And Proposed NBS-Impressed Company Rulemaking

Earlier than the time period “nature-based options” gained forex in Florida, efforts to ease the regulatory burden on small-scale NBS tasks had been underway for greater than a decade, principally to accommodate shellfish restoration and shoreline stabilization tasks.  In 2013, FDEP adopted a Common Allow for “small-scale, low profile” oyster reef restoration ²⁶ and created an exemption for dwelling shorelines underneath 500’ in size.²⁷ Work on the company is now underway to develop three related normal permits for sea grass restoration, in-shore reef restoration, and dwelling shorelines in various levels of completion.  The proposed Common Allow for Seagrass Restoration mentioned under has superior the furthest.

The Proposed Common Allow for Seagrass Restoration

In 2023, the FDEP Division of Water Useful resource Administration initiated rulemaking to create a Common Allow for Sea Grass Restoration, to be codified as Rule 62-330.637 inside the bigger physique of environmental sources allow (ERP) guidelines.  Public workshops have been held in April and August of 2023.  When it goes into impact, the Common Allow will streamline seagrass restoration tasks that aren’t proposed for mitigation or mitigation banking.  Importantly, the proposed rule doesn’t restrict the scale of the world that may be restored however does prohibit regrading or contouring the underside.  The documentation required contains the strategies used, a location map and bathymetry, together with a monitoring and reporting plan.  Geographic limitations embrace a 100’ buffer from marked channels in addition to “historically used” channels, docks, or different overwater constructions with out discover to the proprietor.  An preliminary monitoring should happen inside 30 days of planting and embrace the date of planting completion, “as-built” maps, whole “sea grass items” deployed, and pictures of the positioning. This report have to be submitted inside 60 days of planting, with extra stories submitted each 90 days from the date of planting completion. These stories should doc sea grass protection and density, and supply the strategy used to ascertain protection and density.

The tempo of coverage growth for NBS in Florida has quickened.  Science and a rising information base of expertise are demonstrating efficacy.²⁸  And the emergence of resiliency as a broadly accepted coastal governance framework has created a positive surroundings for policymaking. This coverage growth is probably most noticeable within the State’s dedication to viewing NBS as a type of infrastructure funding in coastal danger discount.  Regulatory developments haven’t saved the identical tempo, however right here too there may be each legislative and administrative coverage momentum for streamlining the legal guidelines and guidelines that apply to NBS. Challenges of scale and federal-state coordination proceed to function hurdles to broader and extra widespread adoption of NBS in Florida.

Study extra about Florida Sea Grant’s nature-based options and programming right here.