Florida Senate - 2025 CS for SB 492
By the Appropriations Committee on Agriculture, Environment, and
General Government; and Senator McClain
601-03466-25 2025492c1
1 A bill to be entitled
2 An act relating to mitigation banks; amending s.
3 373.4136, F.S.; beginning on a specified date,
4 revising the schedule for credit release upon issuance
5 of a mitigation bank credit permit; providing
6 specifications for such schedule; authorizing a
7 mitigation bank applicant to propose an alternative
8 credit release schedule and requiring the Department
9 of Environmental Protection or water management
10 district to consider such credit release schedule;
11 revising the results of the establishment of a
12 mitigation bank service area; revising the projects or
13 activities eligible to use credits released from a
14 mitigation bank for certain purposes; authorizing a
15 project applicant to receive a one-time use of certain
16 credits in certain circumstances; providing
17 requirements for a permit applicant if the number of
18 released credits within a mitigation service area only
19 partially offsets certain impacts; requiring the
20 department and water management districts to apply a
21 proximity factor in a specified manner to make a
22 certain determination; specifying multipliers for such
23 proximity factor; specifying that the use of certain
24 multipliers meets certain requirements; requiring the
25 department or water management district to contact
26 certain mitigation banks and request a certain
27 accounting within a specified timeframe after
28 receiving a certain request from the applicant;
29 prohibiting such accounting from including certain
30 credits; providing that mitigation banks contacted by
31 the department or water management district are
32 allowed a specified timeframe to reply to such
33 request; providing a presumption if a mitigation bank
34 does not respond within a certain timeframe; requiring
35 the department or water management district to make a
36 certain determination upon receipt of the requested
37 accounting; requiring the department or water
38 management district to notify the applicant of such
39 determination within a specified timeframe;
40 authorizing only the permit applicant to rely on such
41 determination for a specified timeframe and for
42 specified purposes; beginning on a specified date and
43 annually thereafter, requiring each mitigation bank in
44 this state to submit a certain accounting to the
45 department or water management district; providing
46 requirements for such accounting; requiring the
47 department or water management district to compile
48 such accountings for a specified purpose and to submit
49 a report that includes certain information to the
50 Legislature on a specified date and annually
51 thereafter; amending s. 704.06, F.S.; requiring
52 certain water management districts, upon application
53 by the owner of a parcel subject to a conservation
54 easement, to release a conservation easement if
55 specified conditions are met; providing for the
56 valuation of the property for certain tax purposes
57 upon such release; specifying that land released from
58 the conservation easement may be used for development
59 consistent with certain zoning; providing an effective
60 date.
61
62 Be It Enacted by the Legislature of the State of Florida:
63
64 Section 1. Subsections (5) and (6) of section 373.4136,
65 Florida Statutes, are amended to read:
66 373.4136 Establishment and operation of mitigation banks.—
67 (5) SCHEDULE FOR CREDIT RELEASE.—After July 1, 2025, when
68 issuing awarding mitigation credits to a mitigation bank permit,
69 the department or the water management district shall adhere to
70 the credit release schedule set forth in this subsection a
71 schedule for the release of those credits awarded by in the
72 mitigation bank permit. A mitigation credit that has been
73 released may be sold or used to offset adverse impacts from an
74 activity regulated under this part.
75 (a) Thirty percent of awarded credits shall be released for
76 the recordation of the conservation easement and establishment
77 of financial assurances required by the mitigation bank permit.
78 If a preservation-only assessment area is used, 100 percent of
79 awarded credits shall be released for the recordation of the
80 conservation easement and establishment of financial assurances
81 required by the mitigation bank permit The department or the
82 water management district shall allow a portion of the
83 mitigation credits awarded to a mitigation bank to be released
84 for sale or use prior to meeting all of the performance criteria
85 specified in the mitigation bank permit. The department or the
86 water management district shall allow release of all of a
87 mitigation bank’s awarded mitigation credits only after the bank
88 meets the mitigation success criteria specified in the permit.
89 (b) Thirty percent of awarded credits shall be released
90 following completion of initial construction activities as
91 established by the mitigation bank permit.
92 (c) Twenty percent of awarded credits shall be released in
93 increments as monitoring indicates interim performance criteria
94 established by the mitigation bank permit are being met.
95 (d) Twenty percent of awarded credits shall be released
96 upon meeting final success criteria established by the
97 mitigation bank permit The number of credits and schedule for
98 release shall be determined by the department or water
99 management district based upon the performance criteria for the
100 mitigation bank and the success criteria for each mitigation
101 activity. The release schedule for a specific mitigation bank or
102 phase thereof shall be related to the actions required to
103 implement the bank, such as site protection, site preparation,
104 earthwork, removal of wastes, planting, removal or control of
105 nuisance and exotic species, installation of structures, and
106 annual monitoring and management requirements for success. In
107 determining the specific release schedule for a bank, the
108 department or water management district shall consider, at a
109 minimum, the following factors:
110 1. Whether the mitigation consists solely of preservation
111 or includes other types of mitigation.
112 2. The length of time anticipated to be required before a
113 determination of success can be achieved.
114 3. The ecological value to be gained from each action
115 required to implement the bank.
116 4. The financial expenditure required for each action to
117 implement the bank.
118 (e) The mitigation bank applicant may propose an
119 alternative credit release schedule and the department or water
120 management district shall consider the proposed alternative
121 credit release schedule.
122 (f)(c) Notwithstanding the provisions of this subsection, a
123 mitigation no credit may not shall be released for freshwater
124 wetland creation until the success criteria established included
125 in the mitigation bank permit for initial construction
126 activities are met.
127 (g)(d) The withdrawal of mitigation credits from a
128 mitigation bank shall be accomplished as a minor modification of
129 the mitigation bank permit. A processing fee is not shall not be
130 required by the department or water management district for this
131 minor modification.
132 (6) MITIGATION SERVICE AREA.—The department or water
133 management district shall establish a mitigation service area
134 for each mitigation bank permit. The department or water
135 management district shall notify and consider comments received
136 on the proposed mitigation service area from each local
137 government within the proposed mitigation service area. Except
138 as provided in this section herein, mitigation credits may be
139 withdrawn and used only to offset adverse impacts in the
140 mitigation service area. The boundaries of the mitigation
141 service area shall depend upon the geographic area where the
142 mitigation bank could reasonably be expected to offset adverse
143 impacts. Mitigation service areas may overlap, and mitigation
144 service areas for two or more mitigation banks may be approved
145 for a regional watershed.
146 (a) In determining the boundaries of the mitigation service
147 area, the department or the water management district shall
148 consider the characteristics, size, and location of the
149 mitigation bank and, at a minimum, the extent to which the
150 mitigation bank:
151 1. Contributes to a regional integrated ecological network;
152 2. Will significantly enhance the water quality or
153 restoration of an offsite receiving water body that is
154 designated as an Outstanding Florida Water, a Wild and Scenic
155 River, an aquatic preserve, a water body designated in a plan
156 approved pursuant to the Surface Water Improvement and
157 Management Act, or a nationally designated estuarine preserve;
158 3. Will provide for the long-term viability of endangered
159 or threatened species or species of special concern;
160 4. Is consistent with the objectives of a regional
161 management plan adopted or endorsed by the department or water
162 management districts; and
163 5. Can reasonably be expected to offset specific types of
164 wetland impacts within a specific geographic area. A mitigation
165 bank need not be able to offset all expected impacts within its
166 service area.
167 (b) The department and water management districts shall use
168 regional watersheds to guide the establishment of mitigation
169 service areas. Drainage basins established pursuant to s.
170 373.414(8) may be used as regional watersheds when they are
171 established based on the hydrological or ecological
172 characteristics of the basin. A mitigation service area may
173 extend beyond the regional watershed in which the bank is
174 located into all or part of other regional watersheds when the
175 mitigation bank has the ability to offset adverse impacts
176 outside that regional watershed. Similarly, a mitigation service
177 area may be smaller than the regional watershed in which the
178 mitigation bank is located when adverse impacts throughout the
179 regional watershed cannot reasonably be expected to be offset by
180 the mitigation bank because of local ecological or hydrological
181 conditions.
182 (c) Once a mitigation bank service area has been
183 established by the department or a water management district for
184 a mitigation bank, such mitigation bank shall be deemed to
185 implement a plan that provides regional ecological value; such
186 service area shall be accepted by all water management
187 districts, local governments, and the department; and the use of
188 credits from such mitigation bank to offset impacts within that
189 bank’s service area shall be considered to have met the
190 cumulative impact requirements of s. 373.414(8)(a).
191 (d) If the requirements in s. 373.414(1)(b) and (8) are
192 met, the following projects or activities regulated under this
193 part shall be eligible to use credits released from a mitigation
194 bank to offset impacts resulting from such projects or
195 activities a mitigation bank, regardless of whether they are
196 located within the mitigation service area:
197 1. Projects with adverse impacts partially located within
198 the mitigation service area.
199 2. Linear projects, such as roadways, transmission lines,
200 distribution lines, pipelines, railways, or seaports listed in
201 s. 311.09(1).
202 3. Projects with total adverse impacts of less than 1 acre
203 in size.
204 4. Projects that meet the requirements of s. 373.414(1)(b)
205 and the criteria in paragraphs (e)-(g).
206 (e) If the requirements of s. 373.414(1)(a) are met and an
207 insufficient number or type of credits from banks whose
208 permitted service area overlays in whole or in part the regional
209 watershed in which the impacts occur, the project applicant is
210 entitled to a one-time use of credits released from a mitigation
211 bank outside the mitigation bank service area to offset impacts
212 pursuant to s. 373.414(1)(b), as established by the procedure in
213 paragraph (g), and upon verification by the department or water
214 management district that mitigation banks within the regional
215 watershed in which the adverse impacts are located lack the
216 appropriate credit type to offset impacts associated with the
217 proposed project. If the number of released credits within a
218 mitigation service area only partially offsets the impacts
219 associated with a proposed project in the mitigation service
220 area, the permit applicant may only use out-of-service-area
221 credits to account for the difference between the released
222 credits available in the mitigation bank service area and the
223 credits required to offset the impacts associated with the
224 proposed project. In implementing this subsection, the
225 department and water management districts shall apply a
226 proximity factor to determine adequate compensatory mitigation
227 as follows:
228 1. A 1.0 multiplier shall be applied for use of in-kind
229 credits within any regional watershed overlain in whole or in
230 part by the service area.
231 2. A 1.0 multiplier shall be applied for use of in-kind and
232 out-of-service-area credits when the service area overlays part
233 of the same regional watershed as the proposed impacts.
234 3. A 1.2 multiplier shall be applied for use of in-kind and
235 out-of-service-area credits located within a regional watershed
236 immediately adjacent to the regional watershed overlain by a
237 bank service area in which proposed impacts are located.
238 4. When in-kind credits are not available to offset impacts
239 in the regional watershed immediately adjacent to the regional
240 watershed overlain by a bank service area in which the proposed
241 impacts are located, as established by the procedure in
242 paragraph (g), an additional 0.25 multiplier shall be applied
243 for each additional regional watershed boundary crossed.
244 5. An additional 0.50 multiplier shall be applied after any
245 multipliers required in subparagraphs 1., 2., 3., and 4., if the
246 mitigation used to offset impacts entails out-of-kind
247 replacement which does not replace the same type of freshwater
248 wetland or fresh surface water impacted.
249 (f) Use of the multipliers in subparagraphs (e)2.-4. meets
250 the requirements of s. 373.414(8)(a) for addressing cumulative
251 impacts.
252 (g) Once a permit applicant requests to use out-of-service
253 area or out-of-kind credits, the department or water management
254 district shall contact all mitigation banks with a mitigation
255 service area encompassing the location of the proposed impacts
256 within 3 business days after receipt of the request from the
257 permit applicant and request an accounting of available credits.
258 The accounting may not include credits reserved for other permit
259 applicants. The mitigation banks contacted by the department or
260 water management district shall be allowed 15 business days
261 after receipt of the request by the department or water
262 management district to reply to such request. If a mitigation
263 bank does not reply within the 15 business day timeframe, it is
264 presumed credits are not available. Upon receipt of the
265 accounting from the mitigation banks, the department or water
266 management district shall determine if sufficient credits are
267 available to offset impacts associated with the proposed project
268 and notify the permit applicant of such determination within 15
269 business days. The permit applicant, and no other entity, may
270 rely on the determination from the department or water
271 management district for a period of 1 year beginning on the date
272 the department or water management district notifies the permit
273 applicant of such determination, but only for purposes relating
274 to the pending application producing such determination and not
275 any extensions, nor renewals, nor modifications of any permit
276 issued pursuant to that pending application, nor for any other
277 permit application.
278 (h) Beginning July 1, 2026, and each July 1 thereafter,
279 each mitigation bank in this state shall submit to the
280 department or water management district an accounting of the
281 number and type of credits the mitigation bank has available for
282 sale. The accounting may not include names of parties for which
283 credits have been reserved or the contract price paid for the
284 credits. The department or water management district shall
285 compile the information to provide an assessment of this state’s
286 mitigation banking system and submit a report to the President
287 of the Senate and the Speaker of the House of Representatives on
288 October 1, 2026, and each October 1 thereafter.
289 Section 2. Subsection (14) is added to section 704.06,
290 Florida Statutes, to read:
291 704.06 Conservation easements; creation; acquisition;
292 enforcement.—
293 (14)(a) Upon application by the fee simple owner of a
294 parcel of land subject to a conservation easement to a water
295 management district, a water management district shall release
296 the conservation easement if the following conditions are met:
297 1. The land subject to the easement is less than 15 acres
298 and is bordered on three or more sides by impervious surfaces;
299 2. Any undeveloped adjacent parcels of land are less than
300 15 acres and similarly bordered on three or more sides by
301 impervious surfaces;
302 3. The land contains no historical, architectural,
303 archeological, or cultural significance; and
304 4. Before the release of the conservation easement, the
305 applicant must have secured sufficient mitigation credits using
306 the uniform mitigation assessment method from a mitigation bank
307 located in this state to offset the loss of wetlands located on
308 the land subject to the conservation easement.
309 (b) Upon the water management district’s release of the
310 conservation easement, the ad valorem taxes on the property
311 shall be based on the just value of the property, and the
312 property may be used for development consistent with the zoning
313 designation of the adjacent lands.
314 Section 3. This act shall take effect July 1, 2025.