HB 1167 2023
CODING: Words stricken are deletions; words underlined are additions.
hb1167-00
Page 1 of 6
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
A bill to be entitled 1
An act relating to mitigation credits; amending s. 2
373.4136, F.S.; authorizing the Department of 3
Environmental Protection and water management 4
districts to release mitigation credits to certain 5
mitigation banks under specified conditions; requiring 6
the department and water management districts to 7
authorize the use of mitigation credits available 8
within surrounding basins or specified regions; 9
conforming provisions to changes made by the act; 10
providing circumstances under which mitigation credits 11
are deemed unavailable in a basin; requiring 12
affidavits from mitigation banks before certain 13
mitigation credits are released; authorizing certain 14
projects to use mitigation banks regardless of whether 15
they are located within the mitigation service area; 16
requiring the department to begin rulemaking on a 17
specified date; providing an effective date. 18
19
Be It Enacted by the Legislature of the State of Florida : 20
21
Section 1. Subsection (5) and paragraph (d) of subsection 22
(6) of section 373.4136, Florida Statutes, are amended to read: 23
373.4136 Establishment and operation of mitigation banks. — 24
(5) SCHEDULE FOR CREDIT RELEASE. —After awarding mitigation 25
HB 1167 2023
CODING: Words stricken are deletions; words underlined are additions.
hb1167-00
Page 2 of 6
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
credits to a mitigation bank, the department or the water 26
management district shall set forth a schedule for the release 27
of those credits in the mitigation bank permit. A mitigation 28
credit that has been released may be sold or used to offset 29
adverse impacts from an activity regulated under this part. 30
(a) The department or the water management district shall 31
allow a portion of the mitigation credits awarded to a 32
mitigation bank to be released for sale or use before prior to 33
meeting all of the performance criter ia specified in the 34
mitigation bank permit. The department or the water management 35
district shall allow the release of all of a mitigation bank's 36
awarded mitigation credits only after the bank meets the 37
mitigation success criteria specified in the permit. If 38
mitigation credits are not available in sufficient quantities to 39
be sold or used to offset imminent and otherwise allowable 40
adverse impacts within a mitigation service area, the department 41
or water management district may release credits to a mitigation 42
bank before the bank meets the mitigation success criteria 43
specified in the mitigation bank permit if the bank has been 44
successfully constructed and there is a high degree of 45
confidence that the required ecological performance standards 46
will be met. 47
(b) The number of credits and schedule for release shall 48
be determined by the department or water management district 49
based upon the performance criteria for the mitigation bank and 50
HB 1167 2023
CODING: Words stricken are deletions; words underlined are additions.
hb1167-00
Page 3 of 6
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
the success criteria for each mitigation activity. The release 51
schedule for a specific mitigation bank or phase thereof shall 52
be related to the actions required to implement the bank, such 53
as site protection, site preparation, earthwork, removal of 54
wastes, planting, removal or control of nuisance and exotic 55
species, installation of structures, and annual monitoring and 56
management requirements for success. In determining the specific 57
release schedule for a bank, the department or water management 58
district shall consider, at a minimum, the following factors: 59
1. Whether the mitigatio n consists solely of preservation 60
or includes other types of mitigation. 61
2. The length of time anticipated to be required before a 62
determination of success can be achieved. 63
3. The ecological value to be gained from each action 64
required to implement the bank. 65
4. The financial expenditure required for each action to 66
implement the bank. 67
(c) Notwithstanding the provisions of this subsection, no 68
credit shall be released for freshwater wetland creation until 69
the success criteria included in the mitigation bank permit are 70
met. 71
(c)(d) The withdrawal of mitigation credits from a 72
mitigation bank shall be accomplished as a minor modification of 73
the mitigation bank permit. A processing fee may shall not be 74
required by the department or water management distric t for this 75
HB 1167 2023
CODING: Words stricken are deletions; words underlined are additions.
hb1167-00
Page 4 of 6
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
minor modification. 76
(d) If mitigation credits are not available in a basin, 77
the department or water management district shall allow the use 78
of mitigation credits available within surrounding basins or 79
within the appropriate United States Geolo gical Survey 80
hydrological unit code in the appropriate buffer region. 81
(e) Wetland mitigation credits are deemed unavailable in a 82
basin if the party requesting the credits provides an affidavit 83
to the department or water management district signed by the 84
mitigation banks within the basin attesting that credits are not 85
available. The affidavit must be signed by each mitigation bank 86
within the 30 days preceding the date the request is submitted 87
to the department or water management district. Mitigation banks 88
without available wetland mitigation credits shall sign an 89
affidavit at the request of the party seeking the credits. If a 90
mitigation bank owner or agent is unable to release wetland 91
mitigation credits within 30 days after a request is made, the 92
mitigation bank is deemed to not have wetland mitigation credits 93
available. 94
(6) MITIGATION SERVICE AREA. —The department or water 95
management district shall establish a mitigation service area 96
for each mitigation bank permit. The department or water 97
management district shall notify and consider comments received 98
on the proposed mitigation service area from each local 99
government within the proposed mitigation service area. Except 100
HB 1167 2023
CODING: Words stricken are deletions; words underlined are additions.
hb1167-00
Page 5 of 6
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
as provided herein, mitigation credits may be withdrawn and used 101
only to offset adverse impacts in the mitigation service area. 102
The boundaries of the mitigation service area shall depend upon 103
the geographic area where the mitigation bank could reasonably 104
be expected to offset adverse impacts. Mitigation service areas 105
may overlap, and mitigati on service areas for two or more 106
mitigation banks may be approved for a regional watershed. 107
(d) If the requirements in s. 373.414(1)(b) and (8) are 108
met, the following projects or activities regulated under this 109
part shall be eligible to use a mitigation bank, regardless of 110
whether they are located within the mitigation service area: 111
1. Projects with adverse impacts partially located within 112
the mitigation service area. 113
2. Linear projects, such as roadways, transmission lines, 114
distribution lines, pipeli nes, railways, or seaports listed in 115
s. 311.09(1). 116
3. Projects with total adverse impacts of less than 1 acre 117
in size. 118
4. Projects approved by the department or water management 119
district on a case-by-case basis if sufficient quantities of 120
mitigation credits are not available to be sold or used to 121
offset imminent and otherwise allowable adverse impacts within a 122
mitigation service area. 123
Section 2. The Department of Environmental Protection 124
shall begin rulemaking to implement this act on August 1, 2023 . 125
HB 1167 2023
CODING: Words stricken are deletions; words underlined are additions.
hb1167-00
Page 6 of 6
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
Section 3. This act shall take effect July 1, 2023. 126