Florida Senate - 2025                        COMMITTEE AMENDMENT
       Bill No. CS for SB 492
       
       
       
       
       
       
                                Ì463698cÎ463698                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  04/22/2025           .                                
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       The Committee on Rules (McClain) recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Subsections (5) and (6) of section 373.4136,
    6  Florida Statutes, are amended to read:
    7         373.4136 Establishment and operation of mitigation banks.—
    8         (5) SCHEDULE FOR CREDIT RELEASE.—After July 1, 2025, when
    9  issuing awarding mitigation credits to a mitigation bank permit,
   10  the department or the water management district shall adhere to
   11  the credit release schedule set forth in paragraph (a) a
   12  schedule for the release of those credits awarded by in the
   13  mitigation bank permit. A mitigation credit that has been
   14  released may be sold or used to offset adverse impacts from an
   15  activity regulated under this part.
   16         (a)1. Thirty percent of awarded credits shall be released
   17  upon the recordation of the conservation easement and
   18  establishment of financial assurances required by the mitigation
   19  bank permit. If a preservation-only assessment area is used, 100
   20  percent of awarded credits shall be released for the recordation
   21  of the conservation easement and establishment of financial
   22  assurances required by the mitigation bank permit. The
   23  department or the water management district shall allow a
   24  portion of the mitigation credits awarded to a mitigation bank
   25  to be released for sale or use prior to meeting all of the
   26  performance criteria specified in the mitigation bank permit.
   27  The department or the water management district shall allow
   28  release of all of a mitigation bank’s awarded mitigation credits
   29  only after the bank meets the mitigation success criteria
   30  specified in the permit.
   31         2.(b)Thirty percent of awarded credits shall be released
   32  following completion of initial construction activities as
   33  established by the mitigation bank permit.
   34         3. Twenty percent of awarded credits shall be released in
   35  increments as monitoring indicates interim performance criteria
   36  established by the mitigation bank permit are being met.
   37         4. Twenty percent of awarded credits shall be released upon
   38  meeting final success criteria established by the mitigation
   39  bank permit The number of credits and schedule for release shall
   40  be determined by the department or water management district
   41  based upon the performance criteria for the mitigation bank and
   42  the success criteria for each mitigation activity. The release
   43  schedule for a specific mitigation bank or phase thereof shall
   44  be related to the actions required to implement the bank, such
   45  as site protection, site preparation, earthwork, removal of
   46  wastes, planting, removal or control of nuisance and exotic
   47  species, installation of structures, and annual monitoring and
   48  management requirements for success. In determining the specific
   49  release schedule for a bank, the department or water management
   50  district shall consider, at a minimum, the following factors:
   51         1. Whether the mitigation consists solely of preservation
   52  or includes other types of mitigation.
   53         2. The length of time anticipated to be required before a
   54  determination of success can be achieved.
   55         3. The ecological value to be gained from each action
   56  required to implement the bank.
   57         4. The financial expenditure required for each action to
   58  implement the bank.
   59         (b)The mitigation bank applicant may propose an
   60  alternative credit release schedule and the department or water
   61  management district shall consider the proposed alternative
   62  credit release schedule.
   63         (c)Upon request by a mitigation bank permittee for
   64  modification of the credit release schedule of a permitted
   65  mitigation bank, the department or relevant water management
   66  district shall modify the credit release schedule to conform it
   67  to paragraph (a) if such permitted mitigation bank has not yet
   68  had mitigation credits released for the completion of
   69  construction activities. The department or water management
   70  district may not alter, change, or modify any other provision of
   71  the mitigation bank permit unrelated to the credit release
   72  schedule.
   73         (d)(c) Notwithstanding the provisions of this subsection, a
   74  mitigation no credit may not shall be released for freshwater
   75  wetland creation until the success criteria established included
   76  in the mitigation bank permit for initial construction
   77  activities are met.
   78         (e)(d) The withdrawal of mitigation credits from a
   79  mitigation bank shall be accomplished as a minor modification of
   80  the mitigation bank permit. A processing fee is not shall not be
   81  required by the department or water management district for this
   82  minor modification.
   83         (6) MITIGATION SERVICE AREA.—The department or water
   84  management district shall establish a mitigation service area
   85  for each mitigation bank permit. The department or water
   86  management district shall notify and consider comments received
   87  on the proposed mitigation service area from each local
   88  government within the proposed mitigation service area. Except
   89  as provided in this section herein, mitigation credits may be
   90  withdrawn and used only to offset adverse impacts in the
   91  mitigation service area. The boundaries of the mitigation
   92  service area shall depend upon the geographic area where the
   93  mitigation bank could reasonably be expected to offset adverse
   94  impacts. Mitigation service areas may overlap, and mitigation
   95  service areas for two or more mitigation banks may be approved
   96  for a regional watershed.
   97         (a) In determining the boundaries of the mitigation service
   98  area, the department or the water management district shall
   99  consider the characteristics, size, and location of the
  100  mitigation bank and, at a minimum, the extent to which the
  101  mitigation bank:
  102         1. Contributes to a regional integrated ecological network;
  103         2. Will significantly enhance the water quality or
  104  restoration of an offsite receiving water body that is
  105  designated as an Outstanding Florida Water, a Wild and Scenic
  106  River, an aquatic preserve, a water body designated in a plan
  107  approved pursuant to the Surface Water Improvement and
  108  Management Act, or a nationally designated estuarine preserve;
  109         3. Will provide for the long-term viability of endangered
  110  or threatened species or species of special concern;
  111         4. Is consistent with the objectives of a regional
  112  management plan adopted or endorsed by the department or water
  113  management districts; and
  114         5. Can reasonably be expected to offset specific types of
  115  wetland impacts within a specific geographic area. A mitigation
  116  bank need not be able to offset all expected impacts within its
  117  service area.
  118         (b) The department and water management districts shall use
  119  regional watersheds to guide the establishment of mitigation
  120  service areas. Drainage basins established pursuant to s.
  121  373.414(8) may be used as regional watersheds when they are
  122  established based on the hydrological or ecological
  123  characteristics of the basin. A mitigation service area may
  124  extend beyond the regional watershed in which the bank is
  125  located into all or part of other regional watersheds when the
  126  mitigation bank has the ability to offset adverse impacts
  127  outside that regional watershed. Similarly, a mitigation service
  128  area may be smaller than the regional watershed in which the
  129  mitigation bank is located when adverse impacts throughout the
  130  regional watershed cannot reasonably be expected to be offset by
  131  the mitigation bank because of local ecological or hydrological
  132  conditions.
  133         (c) Once a mitigation bank service area has been
  134  established by the department or a water management district for
  135  a mitigation bank, such mitigation bank shall be deemed to
  136  implement a plan that provides regional ecological value; such
  137  service area shall be accepted by all water management
  138  districts, local governments, and the department; and the use of
  139  credits from such mitigation bank to offset impacts within that
  140  bank’s service area shall be considered to have met the
  141  cumulative impact requirements of s. 373.414(8)(a).
  142         (d) If the requirements in provisions of s. 373.414(1)(b)
  143  and (8) are met, the following projects or activities regulated
  144  under this part shall be eligible to use a mitigation bank,
  145  regardless of whether they are located within the mitigation
  146  service area:
  147         1. Projects with adverse impacts partially located within
  148  the mitigation service area.
  149         2. Linear projects, such as roadways, transmission lines,
  150  distribution lines, pipelines, railways, or seaports listed in
  151  s. 311.09(1).
  152         3. Projects with total adverse impacts of less than 1 acre
  153  in size. and an insufficient number or type of credits from
  154  banks whose permitted service area overlays in whole or in part
  155  the regional watershed in which the impacts occur, the permit
  156  applicant is entitled to a one-time use of credits released from
  157  a mitigation bank outside the mitigation bank service area to
  158  offset impacts pursuant to s. 373.414(1)(b), as established by
  159  the procedure in paragraph (f). The department or water
  160  management district must have determined that the mitigation
  161  service area lacked the appropriate credit type and the
  162  implementation of permittee-responsible mitigation was not
  163  sufficient offset impacts associated with the proposed project.
  164  Priority must be given to mitigation banks whose permitted
  165  service area fully includes the impacted site. If the number of
  166  released credits within a mitigation service area only partially
  167  offsets the impacts associated with a proposed project in the
  168  mitigation service area, the permit applicant may only use out
  169  of-service-area credits to account for the difference between
  170  the released credits available in the mitigation bank service
  171  area and the credits required to offset the impacts associated
  172  with the proposed project. In implementing this subsection, the
  173  department and water management districts shall apply a
  174  proximity factor to determine adequate compensatory mitigation
  175  as follows:
  176         1. A 1.0 multiplier shall be applied for use of in-kind
  177  credits within the service area.
  178         2. A 1.0 multiplier shall be applied for use of in-kind and
  179  out-of-service-area credits when the service area overlays part
  180  of the same regional watershed as the proposed impacts only
  181  after credit-deficiency has been established by the procedure
  182  set forth in paragraph (f).
  183         3. A 1.2 multiplier shall be applied for use of in-kind and
  184  out-of-service-area credits located within a regional watershed
  185  immediately adjacent to the regional watershed overlain by a
  186  bank service area in which proposed impacts are located only
  187  after credit-deficiency has been established by the procedure
  188  set forth in paragraph (f).
  189         4. When in-kind credits are not available to offset impacts
  190  in the regional watershed immediately adjacent to the regional
  191  watershed overlain by a mitigation bank service area in which
  192  the proposed impacts are located, an additional 0.25 multiplier
  193  shall be applied for each additional regional watershed boundary
  194  crossed only after credit-deficiency has been established by the
  195  procedure set forth in paragraph (f).
  196         5. An additional 0.50 multiplier shall be applied after any
  197  multipliers required in subparagraphs 1.-4., if the mitigation
  198  used to offset impacts entails out-of-kind replacement.
  199         (e) Use of the multipliers in subparagraphs (d)2., 3., 4.,
  200  and 5. meets the requirements of s. 373.414(8)(a) for addressing
  201  cumulative impacts.
  202         (f) Once the amount of mitigation required to offset
  203  impacts has been determined, and the department or water
  204  management district determines that out-of-service-area or out
  205  of-kind mitigation is necessary, the department or water
  206  management district shall contact all mitigation banks with a
  207  mitigation service area encompassing the location of the
  208  proposed impacts within 7 business days after receipt of the
  209  request from the permit applicant and request an accounting of
  210  available credits, including out-of-kind credits. The accounting
  211  may not include credits reserved for other permit applicants.
  212  The mitigation banks contacted by the department or water
  213  management district shall be allowed 15 business days after
  214  receipt of the request by the department or water management
  215  district to reply to such request. If one or more mitigation
  216  banks replying to the request notifies the department or the
  217  water management district that out-of-kind credits are available
  218  to offset the proposed impact and the department or a water
  219  management district determines that such out-of-kind credits are
  220  appropriate to offset all or part of the proposed impact, the
  221  department or the water management district shall notify the
  222  permit applicant that sufficient credits are available within
  223  that bank’s service area to offset the proposed impacts and the
  224  use of credits from another mitigation bank outside of that
  225  other mitigation bank’s service area may not occur until use of
  226  all of the out-of-kind credits occurs as allowed by the
  227  department or water management district. If a mitigation bank
  228  does not reply within the 15 business day timeframe, it is
  229  presumed credits from that bank are not available. Upon receipt
  230  of the accounting from the mitigation banks, the department or
  231  water management district shall determine if sufficient credits
  232  are available to offset impacts associated with the proposed
  233  project and notify the permit applicant of such determination
  234  within 15 business days. The permit applicant, and no other
  235  entity, may rely on the determination from the department or
  236  water management district for a period of six months beginning
  237  on the date the department or water management district notifies
  238  the permit applicant of such determination, but only for
  239  purposes relating to the pending application producing such
  240  determination and not any extensions, nor renewals, nor
  241  modifications of any permit issued pursuant to that pending
  242  application, nor for any other permit application.
  243         (g) Beginning July 1, 2026, and each July 1 thereafter,
  244  each mitigation bank in this state shall submit to the
  245  department or water management district an accounting of the
  246  number and type of credits the mitigation bank has available for
  247  sale. The accounting may not include names of parties for which
  248  credits have been reserved or the contract price paid for the
  249  credits. The department or water management district shall
  250  compile the information to provide an assessment of this state’s
  251  mitigation banking system and submit a report to the President
  252  of the Senate and the Speaker of the House of Representatives on
  253  October 1, 2026, and each October 1 thereafter.
  254         Section 2. This act shall take effect July 1, 2025.
  255  
  256  ================= T I T L E  A M E N D M E N T ================
  257  And the title is amended as follows:
  258         Delete everything before the enacting clause
  259  and insert:
  260                        A bill to be entitled                      
  261         An act relating to land development; amending s.
  262         373.4136, F.S.; beginning on a specified date,
  263         revising the schedule for credit release upon issuance
  264         of a mitigation bank credit permit; providing
  265         specifications for such schedule; authorizing a
  266         mitigation bank applicant to propose an alternative
  267         credit release schedule; requiring the department or
  268         water management district to modify an existing
  269         permitted credit release schedule upon the request
  270         under certain circumstances; prohibiting mitigation
  271         credits from being released for freshwater wetland
  272         creation until certain conditions are met; authorizing
  273         one-time use of mitigation credits outside the
  274         mitigation bank service area in certain circumstances;
  275         requiring the department and water management
  276         districts to apply a proximity factor multipliers in a
  277         specified manner; specifying that the use of certain
  278         multipliers meets certain requirements; requiring the
  279         department or water management district to request an
  280         accounting of credit availability from mitigation
  281         banks within a specified timeframe; specifying the
  282         timeframe to reply to such request; requiring the
  283         permit applicant to be notified of credits available;
  284         providing a presumption if a mitigation bank does not
  285         respond within a certain timeframe; limiting the
  286         timeframe for permit applicant to rely on a credit
  287         availability determination for specified purposes;
  288         requiring each mitigation banks to submit an
  289         accounting of credits; requiring the department or
  290         water management district to compile such accountings
  291         for a specified purpose and to submit a report
  292         including certain information to the Legislature on a
  293         specified date and annually thereafter; providing an
  294         effective date.