CS for CS for SB 492 Second Engrossed
2025492e2
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; requiring the Department of
9 Environmental Protection or water management district
10 to modify an existing permitted credit release
11 schedule upon request under certain circumstances;
12 prohibiting mitigation credits from being released for
13 freshwater wetland creation until certain conditions
14 are met; authorizing one-time use of mitigation
15 credits outside the mitigation bank service area in
16 certain circumstances; requiring the department and
17 water management districts to apply proximity factor
18 multipliers in a specified manner; specifying that the
19 use of certain multipliers meets certain requirements;
20 requiring the department or water management district
21 to request an accounting of credit availability from
22 mitigation banks within a specified timeframe;
23 specifying the timeframe to reply to such request;
24 requiring the permit applicant to be notified of
25 credits available; providing a presumption if a
26 mitigation bank does not respond within a certain
27 timeframe; limiting the timeframe for the permit
28 applicant to rely on a credit availability
29 determination for specified purposes; requiring each
30 mitigation bank to submit an accounting of credits;
31 requiring the department or water management district
32 to compile such accountings for a specified purpose
33 and to submit a report including certain information
34 to the Legislature on a specified date and annually
35 thereafter; providing an effective date.
36
37 Be It Enacted by the Legislature of the State of Florida:
38
39 Section 1. Subsections (5) and (6) of section 373.4136,
40 Florida Statutes, are amended to read:
41 373.4136 Establishment and operation of mitigation banks.—
42 (5) SCHEDULE FOR CREDIT RELEASE.—After July 1, 2025, when
43 issuing awarding mitigation credits to a mitigation bank permit,
44 the department or the water management district shall adhere to
45 the credit release schedule set forth in paragraph (a) a
46 schedule for the release of those credits awarded by in the
47 mitigation bank permit. A mitigation credit that has been
48 released may be sold or used to offset adverse impacts from an
49 activity regulated under this part.
50 (a)1. Thirty percent of awarded credits shall be released
51 upon the recordation of the conservation easement and
52 establishment of financial assurances required by the mitigation
53 bank permit. If a preservation-only assessment area is used, 100
54 percent of awarded credits shall be released for the recordation
55 of the conservation easement and establishment of financial
56 assurances required by the mitigation bank permit.
57 2. Thirty percent of awarded credits shall be released
58 following completion of initial construction activities as
59 established by the mitigation bank permit.
60 3. Twenty percent of awarded credits shall be released in
61 increments as monitoring indicates interim performance criteria
62 established by the mitigation bank permit are being met.
63 4. Twenty percent of awarded credits shall be released upon
64 meeting final success criteria established by the mitigation
65 bank permit.
66 (b) The mitigation bank applicant may propose an
67 alternative credit release schedule and the department or water
68 management district shall consider the proposed alternative
69 credit release schedule.
70 (c) Upon request by a mitigation bank permittee for
71 modification of the credit release schedule of a permitted
72 mitigation bank, the department or relevant water management
73 district shall modify the credit release schedule to conform it
74 to paragraph (a) if such permitted mitigation bank has not yet
75 had mitigation credits released for the completion of
76 construction activities. The department or water management
77 district may not alter, change, or modify any other provision of
78 the mitigation bank permit unrelated to the credit release
79 schedule The department or the water management district shall
80 allow a portion of the mitigation credits awarded to a
81 mitigation bank to be released for sale or use prior to meeting
82 all of the performance criteria specified in the mitigation bank
83 permit. The department or the water management district shall
84 allow release of all of a mitigation bank’s awarded mitigation
85 credits only after the bank meets the mitigation success
86 criteria specified in the permit.
87 (b) The number of credits and schedule for release shall be
88 determined by the department or water management district based
89 upon the performance criteria for the mitigation bank and the
90 success criteria for each mitigation activity. The release
91 schedule for a specific mitigation bank or phase thereof shall
92 be related to the actions required to implement the bank, such
93 as site protection, site preparation, earthwork, removal of
94 wastes, planting, removal or control of nuisance and exotic
95 species, installation of structures, and annual monitoring and
96 management requirements for success. In determining the specific
97 release schedule for a bank, the department or water management
98 district shall consider, at a minimum, the following factors:
99 1. Whether the mitigation consists solely of preservation
100 or includes other types of mitigation.
101 2. The length of time anticipated to be required before a
102 determination of success can be achieved.
103 3. The ecological value to be gained from each action
104 required to implement the bank.
105 4. The financial expenditure required for each action to
106 implement the bank.
107 (d)(c) Notwithstanding the provisions of this subsection, a
108 mitigation no credit may not shall be released for freshwater
109 wetland creation until the success criteria established included
110 in the mitigation bank permit for initial construction
111 activities are met.
112 (e)(d) The withdrawal of mitigation credits from a
113 mitigation bank shall be accomplished as a minor modification of
114 the mitigation bank permit. A processing fee is not shall not be
115 required by the department or water management district for this
116 minor modification.
117 (6) MITIGATION SERVICE AREA.—The department or water
118 management district shall establish a mitigation service area
119 for each mitigation bank permit. The department or water
120 management district shall notify and consider comments received
121 on the proposed mitigation service area from each local
122 government within the proposed mitigation service area. Except
123 as provided in this section herein, mitigation credits may be
124 withdrawn and used only to offset adverse impacts in the
125 mitigation service area. The boundaries of the mitigation
126 service area shall depend upon the geographic area where the
127 mitigation bank could reasonably be expected to offset adverse
128 impacts. Mitigation service areas may overlap, and mitigation
129 service areas for two or more mitigation banks may be approved
130 for a regional watershed.
131 (a) In determining the boundaries of the mitigation service
132 area, the department or the water management district shall
133 consider the characteristics, size, and location of the
134 mitigation bank and, at a minimum, the extent to which the
135 mitigation bank:
136 1. Contributes to a regional integrated ecological network;
137 2. Will significantly enhance the water quality or
138 restoration of an offsite receiving water body that is
139 designated as an Outstanding Florida Water, a Wild and Scenic
140 River, an aquatic preserve, a water body designated in a plan
141 approved pursuant to the Surface Water Improvement and
142 Management Act, or a nationally designated estuarine preserve;
143 3. Will provide for the long-term viability of endangered
144 or threatened species or species of special concern;
145 4. Is consistent with the objectives of a regional
146 management plan adopted or endorsed by the department or water
147 management districts; and
148 5. Can reasonably be expected to offset specific types of
149 wetland impacts within a specific geographic area. A mitigation
150 bank need not be able to offset all expected impacts within its
151 service area.
152 (b) The department and water management districts shall use
153 regional watersheds to guide the establishment of mitigation
154 service areas. Drainage basins established pursuant to s.
155 373.414(8) may be used as regional watersheds when they are
156 established based on the hydrological or ecological
157 characteristics of the basin. A mitigation service area may
158 extend beyond the regional watershed in which the bank is
159 located into all or part of other regional watersheds when the
160 mitigation bank has the ability to offset adverse impacts
161 outside that regional watershed. Similarly, a mitigation service
162 area may be smaller than the regional watershed in which the
163 mitigation bank is located when adverse impacts throughout the
164 regional watershed cannot reasonably be expected to be offset by
165 the mitigation bank because of local ecological or hydrological
166 conditions.
167 (c) Once a mitigation bank service area has been
168 established by the department or a water management district for
169 a mitigation bank, such mitigation bank shall be deemed to
170 implement a plan that provides regional ecological value; such
171 service area shall be accepted by all water management
172 districts, local governments, and the department; and the use of
173 credits from such mitigation bank to offset impacts within that
174 bank’s service area shall be considered to have met the
175 cumulative impact requirements of s. 373.414(8)(a).
176 (d) If the provisions of requirements in s. 373.414(1)(b)
177 and (8) are met and an insufficient number or type of credits
178 from banks whose permitted service area overlays in whole or in
179 part the regional watershed in which the impacts occur, the
180 permit applicant is entitled to a one-time use of credits
181 released from a mitigation bank outside the mitigation bank
182 service area to offset impacts pursuant to s. 373.414(1)(b), as
183 established by the procedure in paragraph (f). The department or
184 water management district must have determined that the
185 mitigation service area lacked the appropriate credit type.
186 Priority must be given to mitigation banks whose permitted
187 service area fully includes the impacted site. If the number of
188 released credits within a mitigation service area only partially
189 offsets the impacts associated with a proposed project in the
190 mitigation service area, the permit applicant may only use out
191 of-service-area credits to account for the difference between
192 the released credits available in the mitigation bank service
193 area and the credits required to offset the impacts associated
194 with the proposed project. In implementing this subsection, the
195 department and water management districts shall apply a
196 proximity factor to determine adequate compensatory mitigation
197 as follows:
198 1. A 1.0 multiplier shall be applied for use of in-kind
199 credits within the service area.
200 2. A 1.0 multiplier shall be applied for use of in-kind and
201 out-of-service-area credits when the service area overlays part
202 of the same regional watershed as the proposed impacts only
203 after credit-deficiency has been established by the procedure
204 set forth in paragraph (f).
205 3. A 1.2 multiplier shall be applied for use of in-kind and
206 out-of-service-area credits located within a regional watershed
207 immediately adjacent to the regional watershed overlain by a
208 bank service area in which proposed impacts are located only
209 after credit-deficiency has been established by the procedure
210 set forth in paragraph (f).
211 4. When in-kind credits are not available to offset impacts
212 in the regional watershed immediately adjacent to the regional
213 watershed overlain by a mitigation bank service area in which
214 the proposed impacts are located, an additional 0.25 multiplier
215 shall be applied for each additional regional watershed boundary
216 crossed only after credit-deficiency has been established by the
217 procedure set forth in paragraph (f).
218 5. An additional 0.50 multiplier shall be applied after any
219 multipliers required in subparagraphs 1.-4., if the mitigation
220 used to offset impacts entails out-of-kind replacement.
221 (e) Use of the multipliers in subparagraphs (d)2., 3., 4.,
222 and 5. meets the requirements of s. 373.414(8)(a) for addressing
223 cumulative impacts.
224 (f) Once the amount of mitigation required to offset
225 impacts has been determined, and the department or water
226 management district determines that out-of-service-area or out
227 of-kind mitigation is necessary, the department or water
228 management district shall contact all mitigation banks with a
229 mitigation service area encompassing the location of the
230 proposed impacts within 7 business days after receipt of the
231 request from the permit applicant and request an accounting of
232 available credits, including out-of-kind credits. The accounting
233 may not include credits reserved for other permit applicants.
234 The mitigation banks contacted by the department or water
235 management district shall be allowed 15 business days after
236 receipt of the request by the department or water management
237 district to reply to such request. If one or more mitigation
238 banks replying to the request notifies the department or the
239 water management district that out-of-kind credits are available
240 to offset the proposed impact and the department or a water
241 management district determines that such out-of-kind credits are
242 appropriate to offset all or part of the proposed impact, the
243 department or the water management district shall notify the
244 permit applicant that sufficient credits are available within
245 that bank’s service area to offset the proposed impacts and the
246 use of credits from another mitigation bank outside of that
247 other mitigation bank’s service area may not occur until use of
248 all of the out-of-kind credits occurs as allowed by the
249 department or water management district. If a mitigation bank
250 does not reply within the 15 business day timeframe, it is
251 presumed credits from that bank are not available. Upon receipt
252 of the accounting from the mitigation banks, the department or
253 water management district shall determine if sufficient credits
254 are available to offset impacts associated with the proposed
255 project and notify the permit applicant of such determination
256 within 15 business days. The permit applicant, and no other
257 entity, may rely on the determination from the department or
258 water management district for a period of 6 months beginning on
259 the date the department or water management district notifies
260 the permit applicant of such determination, but only for
261 purposes relating to the pending application producing such
262 determination and not any extensions, nor renewals, nor
263 modifications of any permit issued pursuant to that pending
264 application, nor for any other permit application.
265 (g) Beginning July 1, 2026, and each July 1 thereafter,
266 each mitigation bank in this state shall submit to the
267 department or water management district an accounting of the
268 number and type of credits the mitigation bank has available for
269 sale. The accounting may not include names of parties for which
270 credits have been reserved or the contract price paid for the
271 credits. The department or water management district shall
272 compile the information to provide an assessment of this state’s
273 mitigation banking system and submit a report to the President
274 of the Senate and the Speaker of the House of Representatives on
275 October 1, 2026, and each October 1 thereafter, the following
276 projects or activities regulated under this part shall be
277 eligible to use a mitigation bank, regardless of whether they
278 are located within the mitigation service area:
279 1. Projects with adverse impacts partially located within
280 the mitigation service area.
281 2. Linear projects, such as roadways, transmission lines,
282 distribution lines, pipelines, railways, or seaports listed in
283 s. 311.09(1).
284 3. Projects with total adverse impacts of less than 1 acre
285 in size.
286 Section 2. This act shall take effect July 1, 2025.