Florida Senate - 2025 COMMITTEE AMENDMENT
Bill No. CS for SB 492
Ì923336*Î923336
LEGISLATIVE ACTION
Senate . House
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The Committee on Rules (McClain) recommended the following:
1 Senate Substitute for Amendment (145310) (with title
2 amendment)
3
4 Delete lines 70 - 313
5 and insert:
6 the credit release schedule set forth in paragraph (a) a
7 schedule for the release of those credits awarded by in the
8 mitigation bank permit. A mitigation credit that has been
9 released may be sold or used to offset adverse impacts from an
10 activity regulated under this part.
11 (a)1. Thirty percent of awarded credits shall be released
12 upon the recordation of the conservation easement and
13 establishment of financial assurances required by the mitigation
14 bank permit. If a preservation-only assessment area is used, 100
15 percent of awarded credits shall be released for the recordation
16 of the conservation easement and establishment of financial
17 assurances required by the mitigation bank permit. The
18 department or the water management district shall allow a
19 portion of the mitigation credits awarded to a mitigation bank
20 to be released for sale or use prior to meeting all of the
21 performance criteria specified in the mitigation bank permit.
22 The department or the water management district shall allow
23 release of all of a mitigation bank’s awarded mitigation credits
24 only after the bank meets the mitigation success criteria
25 specified in the permit.
26 2.(b) Thirty percent of awarded credits shall be released
27 following completion of initial construction activities as
28 established by the mitigation bank permit.
29 3. Twenty percent of awarded credits shall be released in
30 increments as monitoring indicates interim performance criteria
31 established by the mitigation bank permit are being met.
32 4. Twenty percent of awarded credits shall be released upon
33 meeting final success criteria established by the mitigation
34 bank permit The number of credits and schedule for release shall
35 be determined by the department or water management district
36 based upon the performance criteria for the mitigation bank and
37 the success criteria for each mitigation activity. The release
38 schedule for a specific mitigation bank or phase thereof shall
39 be related to the actions required to implement the bank, such
40 as site protection, site preparation, earthwork, removal of
41 wastes, planting, removal or control of nuisance and exotic
42 species, installation of structures, and annual monitoring and
43 management requirements for success. In determining the specific
44 release schedule for a bank, the department or water management
45 district shall consider, at a minimum, the following factors:
46 1. Whether the mitigation consists solely of preservation
47 or includes other types of mitigation.
48 2. The length of time anticipated to be required before a
49 determination of success can be achieved.
50 3. The ecological value to be gained from each action
51 required to implement the bank.
52 4. The financial expenditure required for each action to
53 implement the bank.
54 (b) The mitigation bank applicant may propose an
55 alternative credit release schedule and the department or water
56 management district shall consider the proposed alternative
57 credit release schedule.
58 (c) Upon request by a mitigation bank permittee for
59 modification of the credit release schedule of a permitted
60 mitigation bank, the department or relevant water management
61 district shall modify the credit release schedule to conform it
62 to paragraph (a) if such permitted mitigation bank has not yet
63 had mitigation credits released for the completion of
64 construction activities. The department or water management
65 district may not alter, change, or modify any other provision of
66 the mitigation bank permit unrelated to the credit release
67 schedule.
68 (d)(c) Notwithstanding the provisions of this subsection, a
69 mitigation no credit may not shall be released for freshwater
70 wetland creation until the success criteria established included
71 in the mitigation bank permit for initial construction
72 activities are met.
73 (e)(d) The withdrawal of mitigation credits from a
74 mitigation bank shall be accomplished as a minor modification of
75 the mitigation bank permit. A processing fee is not shall not be
76 required by the department or water management district for this
77 minor modification.
78 (6) MITIGATION SERVICE AREA.—The department or water
79 management district shall establish a mitigation service area
80 for each mitigation bank permit. The department or water
81 management district shall notify and consider comments received
82 on the proposed mitigation service area from each local
83 government within the proposed mitigation service area. Except
84 as provided in this section herein, mitigation credits may be
85 withdrawn and used only to offset adverse impacts in the
86 mitigation service area. The boundaries of the mitigation
87 service area shall depend upon the geographic area where the
88 mitigation bank could reasonably be expected to offset adverse
89 impacts. Mitigation service areas may overlap, and mitigation
90 service areas for two or more mitigation banks may be approved
91 for a regional watershed.
92 (a) In determining the boundaries of the mitigation service
93 area, the department or the water management district shall
94 consider the characteristics, size, and location of the
95 mitigation bank and, at a minimum, the extent to which the
96 mitigation bank:
97 1. Contributes to a regional integrated ecological network;
98 2. Will significantly enhance the water quality or
99 restoration of an offsite receiving water body that is
100 designated as an Outstanding Florida Water, a Wild and Scenic
101 River, an aquatic preserve, a water body designated in a plan
102 approved pursuant to the Surface Water Improvement and
103 Management Act, or a nationally designated estuarine preserve;
104 3. Will provide for the long-term viability of endangered
105 or threatened species or species of special concern;
106 4. Is consistent with the objectives of a regional
107 management plan adopted or endorsed by the department or water
108 management districts; and
109 5. Can reasonably be expected to offset specific types of
110 wetland impacts within a specific geographic area. A mitigation
111 bank need not be able to offset all expected impacts within its
112 service area.
113 (b) The department and water management districts shall use
114 regional watersheds to guide the establishment of mitigation
115 service areas. Drainage basins established pursuant to s.
116 373.414(8) may be used as regional watersheds when they are
117 established based on the hydrological or ecological
118 characteristics of the basin. A mitigation service area may
119 extend beyond the regional watershed in which the bank is
120 located into all or part of other regional watersheds when the
121 mitigation bank has the ability to offset adverse impacts
122 outside that regional watershed. Similarly, a mitigation service
123 area may be smaller than the regional watershed in which the
124 mitigation bank is located when adverse impacts throughout the
125 regional watershed cannot reasonably be expected to be offset by
126 the mitigation bank because of local ecological or hydrological
127 conditions.
128 (c) Once a mitigation bank service area has been
129 established by the department or a water management district for
130 a mitigation bank, such mitigation bank shall be deemed to
131 implement a plan that provides regional ecological value; such
132 service area shall be accepted by all water management
133 districts, local governments, and the department; and the use of
134 credits from such mitigation bank to offset impacts within that
135 bank’s service area shall be considered to have met the
136 cumulative impact requirements of s. 373.414(8)(a).
137 (d) If the requirements in provisions of s. 373.414(1)(b)
138 and (8) are met, the following projects or activities regulated
139 under this part shall be eligible to use a mitigation bank,
140 regardless of whether they are located within the mitigation
141 service area:
142 1. Projects with adverse impacts partially located within
143 the mitigation service area.
144 2. Linear projects, such as roadways, transmission lines,
145 distribution lines, pipelines, railways, or seaports listed in
146 s. 311.09(1).
147 3. Projects with total adverse impacts of less than 1 acre
148 in size. and an insufficient number or type of credits from
149 banks whose permitted service area overlays in whole or in part
150 the regional watershed in which the impacts occur, the permit
151 applicant is entitled to a one-time use of credits released from
152 a mitigation bank outside the mitigation bank service area to
153 offset impacts pursuant to s. 373.414(1)(b), as established by
154 the procedure in paragraph (f). The department or water
155 management district must have determined that the mitigation
156 service area lacked the appropriate credit type and the
157 implementation of permittee-responsible mitigation was not
158 sufficient offset impacts associated with the proposed project.
159 Priority must be given to mitigation banks whose permitted
160 service area fully includes the impacted site. If the number of
161 released credits within a mitigation service area only partially
162 offsets the impacts associated with a proposed project in the
163 mitigation service area, the permit applicant may only use out
164 of-service-area credits to account for the difference between
165 the released credits available in the mitigation bank service
166 area and the credits required to offset the impacts associated
167 with the proposed project. In implementing this subsection, the
168 department and water management districts shall apply a
169 proximity factor to determine adequate compensatory mitigation
170 as follows:
171 1. A 1.0 multiplier shall be applied for use of in-kind
172 credits within the service area.
173 2. A 1.0 multiplier shall be applied for use of in-kind and
174 out-of-service-area credits when the service area overlays part
175 of the same regional watershed as the proposed impacts only
176 after credit-deficiency has been established by the procedure
177 set forth in paragraph (f).
178 3. A 1.2 multiplier shall be applied for use of in-kind and
179 out-of-service-area credits located within a regional watershed
180 immediately adjacent to the regional watershed overlain by a
181 bank service area in which proposed impacts are located only
182 after credit-deficiency has been established by the procedure
183 set forth in paragraph (f).
184 4. When in-kind credits are not available to offset impacts
185 in the regional watershed immediately adjacent to the regional
186 watershed overlain by a mitigation bank service area in which
187 the proposed impacts are located, an additional 0.25 multiplier
188 shall be applied for each additional regional watershed boundary
189 crossed only after credit-deficiency has been established by the
190 procedure set forth in paragraph (f).
191 5. An additional 0.50 multiplier shall be applied after any
192 multipliers required in subparagraphs 1.-4., if the mitigation
193 used to offset impacts entails out-of-kind replacement.
194 (e) Use of the multipliers in subparagraphs (d)2., 3., 4.,
195 and 5. meets the requirements of s. 373.414(8)(a) for addressing
196 cumulative impacts.
197 (f) Once the amount of mitigation required to offset
198 impacts has been determined, and the department or water
199 management district determines that out-of-service-area or out
200 of-kind mitigation is necessary , the department or water
201 management district shall contact all mitigation banks with a
202 mitigation service area encompassing the location of the
203 proposed impacts within 7 business days after receipt of the
204 request from the permit applicant and request an accounting of
205 available credits, including out-of-kind credits. The accounting
206 may not include credits reserved for other permit applicants.
207 The mitigation banks contacted by the department or water
208 management district shall be allowed 15 business days after
209 receipt of the request by the department or water management
210 district to reply to such request. If one or more mitigation
211 banks replying to the request notifies the department or the
212 water management district that out-of-kind credits are available
213 to offset the proposed impact and the department or a water
214 management district determines that such out-of-kind credits are
215 appropriate to offset all or part of the proposed impact, the
216 department or the water management district shall notify the
217 permit applicant that sufficient credits are available within
218 that bank’s service area to offset the proposed impacts and the
219 use of credits from another mitigation bank outside of that
220 other mitigation bank’s service area may not occur until use of
221 all of the out-of-kind credits occurs as allowed by the
222 department or water management district. If a mitigation bank
223 does not reply within the 15 business day timeframe, it is
224 presumed credits from that bank are not available. Upon receipt
225 of the accounting from the mitigation banks, the department or
226 water management district shall determine if sufficient credits
227 are available to offset impacts associated with the proposed
228 project and notify the permit applicant of such determination
229 within 15 business days. The permit applicant, and no other
230 entity, may rely on the determination from the department or
231 water management district for a period of six months beginning
232 on the date the department or water management district notifies
233 the permit applicant of such determination, but only for
234 purposes relating to the pending application producing such
235 determination and not any extensions, nor renewals, nor
236 modifications of any permit issued pursuant to that pending
237 application, nor for any other permit application.
238 (g) Beginning July 1, 2026, and each July 1 thereafter,
239 each mitigation bank in this state shall submit to the
240 department or water management district an accounting of the
241 number and type of credits the mitigation bank has available for
242 sale. The accounting may not include names of parties for which
243 credits have been reserved or the contract price paid for the
244 credits. The department or water management district shall
245 compile the information to provide an assessment of this state’s
246 mitigation banking system and submit a report to the President
247 of the Senate and the Speaker of the House of Representatives on
248 October 1, 2026, and each October 1 thereafter.
249 Section 2. Paragraph (e) is added to subsection (2) of
250 section 376.308, Florida Statutes, to read:
251 376.308 Liabilities and defenses of facilities.—
252 (2) In addition to the defense described in paragraph
253 (1)(c), the only other defenses of a person specified in
254 subsection (1) are to plead and prove that the occurrence was
255 solely the result of any of the following or any combination of
256 the following:
257 (e) The condition giving rise to the cause of action is a
258 natural geological substance of a former phosphate mine, as
259 defined in s. 378.213, for which:
260 1. A notice has been recorded in accordance with s.
261 378.213(1); and
262 2. The Department of Health has conducted a survey under s.
263 404.0561(1).
264 Section 3. Section 378.213, Florida Statutes, is created to
265 read:
266 378.213 Notice of former phosphate mine site.—
267 (1) A landowner may record a notice in the official records
268 of the county in which the land is located which identifies the
269 landowner’s property as a former phosphate mine. The recorded
270 notice must be in substantially the following form:
271
272 NOTICE
273 This property is a former phosphate mine as defined in
274 s. 378.213(2), Florida Statutes.
275
276 Such recording serves as notice that the land is a former
277 phosphate mine.
278 (2) As used in this section, the term “former phosphate
279 mine” means an area of land upon which phosphate mining has been
280 conducted and which may have been subject to a radiation survey
281 in accordance with s. 404.0561 and state reclamation
282 requirements of ss. 378.201-378.212, but does not include a
283 phosphogypsum stack as defined in s. 403.4154(1)(d).
284 Section 4. Section 404.0561, Florida Statutes, is created
285 to read:
286 404.0561 Survey of former phosphate mining lands.—
287 (1) Upon petition by a current landowner, the department
288 shall conduct a gamma radiation survey of a former phosphate
289 land parcel within 120 days after receipt of the petition to
290 determine the radioactivity levels. The survey must document
291 gamma radiation exposure measurements and the locations of the
292 measurements.
293 (2) The department shall provide a copy of the preliminary
294 survey results to the petitioner within 30 days after completion
295 of the survey. Within 60 days after receipt of the survey, the
296 petitioner may request an additional survey based upon any
297 reasonable belief that the survey was flawed or not
298 representative of conditions on the site. The department shall
299 conduct one additional survey within 90 days after receipt of
300 the petitioner’s request. The additional survey must meet the
301 requirements of this section and is deemed final within 90 days
302 after completion.
303 Section 5. Section 768.405, Florida Statutes, is created to
304 read:
305 768.405 Documentation of radiation levels.—In any civil
306 action based on strict liability under s. 376.313(3), negligence
307 or similar conduct related to an alleged discharge of hazardous
308 substances or condition of pollution related to phosphate
309 mining, including the presence of mining overburden, solid waste
310 from the extraction, or beneficiation of phosphate rock from a
311 phosphate mine; or any other similar claim related to the mining
312 of phosphatic rock or reclamation of a mined area, the plaintiff
313 must include a radiation survey of the property with the
314 complaint. The survey must be prepared by a person certified as
315 either a health physicist by the American Board of Health
316 Physics or as a radiation protection technologist by the
317 National Registry of Radiation Protection Technologists. The
318 survey must be representative and document the measured gamma
319 radiation on the property, including background values
320 determined in accordance with the Environmental Protection
321 Agency’s Multi-agency Radiation Survey and Site Investigation
322 Manual; the locations of the measurements; the testing
323 equipment; the testing methodology used, including the equipment
324 calibration date and protocol; and the name of the person
325 performing the survey and describe the person’s relevant
326 training, education, and experience. The survey shall be
327 verified under penalty of perjury as provided in s. 92.525.
328
329 ================= T I T L E A M E N D M E N T ================
330 And the title is amended as follows:
331 Delete lines 1 - 60
332 and insert:
333 An act relating to land development; amending s.
334 373.4136, F.S.; beginning on a specified date,
335 revising the schedule for credit release upon issuance
336 of a mitigation bank credit permit; providing
337 specifications for such schedule; authorizing a
338 mitigation bank applicant to propose an alternative
339 credit release schedule and requiring the Department
340 of Environmental Protection or water management
341 district to consider such credit release schedule;
342 requiring the department or water management district
343 to modify an existing permitted credit release
344 schedule upon the request of the mitigation bank
345 permittee under certain circumstances; prohibiting the
346 department from altering, changing, or modifying other
347 provisions of the mitigation bank permit that are
348 unrelated to the credit release schedule; prohibiting
349 a mitigation credit from being released for freshwater
350 wetland creation until certain conditions are met;
351 revising the results of the establishment of a
352 mitigation bank service area; revising the projects or
353 activities eligible to use credits released from a
354 mitigation bank for certain purposes; authorizing a
355 permit applicant to receive a one-time use of certain
356 credits in certain circumstances; providing
357 requirements for a permit applicant if the number of
358 released credits within a mitigation service area only
359 partially offsets certain impacts; requiring the
360 department and water management districts to apply a
361 proximity factor in a specified manner to make a
362 certain determination; specifying multipliers for such
363 proximity factor; specifying that the use of certain
364 multipliers meets certain requirements; requiring the
365 department or water management district to contact
366 certain mitigation banks and request a certain
367 accounting within a specified timeframe after
368 receiving a certain request from the applicant;
369 prohibiting such accounting from including certain
370 credits; providing that mitigation banks contacted by
371 the department or water management district are
372 allowed a specified timeframe to reply to such
373 request; requiring the department or water management
374 district to notify the permit applicant of certain
375 information if the department or water management
376 district is notified that out-of-kind credits are
377 available to offset the proposed impact and the
378 department or water management district makes a
379 certain determination; providing a presumption if a
380 mitigation bank does not respond within a certain
381 timeframe; requiring the department or water
382 management district to make a certain determination
383 upon receipt of the requested accounting; requiring
384 the department or water management district to notify
385 the applicant of such determination within a specified
386 timeframe; authorizing only the permit applicant to
387 rely on such determination for a specified timeframe
388 and for specified purposes; beginning on a specified
389 date and annually thereafter, requiring each
390 mitigation bank in this state to submit a certain
391 accounting to the department or water management
392 district; providing requirements for such accounting;
393 requiring the department or water management district
394 to compile such accountings for a specified purpose
395 and to submit a report that includes certain
396 information to the Legislature on a specified date and
397 annually thereafter; amending s. 376.308, F.S.;
398 providing conditions for a cause of action against
399 certain former phosphate mine sites; creating s.
400 378.213, F.S.; authorizing landowners to record
401 certain notice of former phosphate mines; specifying
402 requirements for such notice; defining the term
403 “former phosphate mine”; creating s. 404.0561, F.S.;
404 requiring the Department of Health to conduct gamma
405 radiation surveys of former phosphate land parcels
406 upon petition; creating s. 768.405, F.S.; requiring
407 that specified documentation of radiation levels be
408 submitted in certain civil actions related to
409 phosphate mining; providing an effective date.