Florida Senate - 2025 COMMITTEE AMENDMENT
Bill No. CS for SB 492
Ì463698cÎ463698
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
04/22/2025 .
.
.
.
—————————————————————————————————————————————————————————————————
—————————————————————————————————————————————————————————————————
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.