Florida Senate - 2023 SB 1702 By Senator DiCeglie 18-01253A-23 20231702__ 1 A bill to be entitled 2 An act relating to mitigation credits; amending s. 3 373.4136, F.S.; authorizing the Department of 4 Environmental Protection and water management 5 districts to release mitigation credits to certain 6 mitigation banks under specified conditions; requiring 7 the department and water management districts to 8 authorize the use of mitigation credits available 9 within surrounding basins or specified regions; 10 conforming provisions to changes made by the act; 11 providing circumstances under which mitigation credits 12 are deemed unavailable in a basin; requiring 13 affidavits from mitigation banks before certain 14 mitigation credits are released; authorizing certain 15 projects to use mitigation banks regardless of whether 16 the projects are located within the mitigation service 17 area; requiring the department to begin rulemaking on 18 a specified date; providing an effective date. 19 20 Be It Enacted by the Legislature of the State of Florida: 21 22 Section 1.Subsection (5) and paragraph (d) of subsection 23 (6) of section 373.4136, Florida Statutes, are amended to read: 24 373.4136Establishment and operation of mitigation banks. 25 (5)SCHEDULE FOR CREDIT RELEASE.After awarding mitigation 26 credits to a mitigation bank, the department or the water 27 management district shall set forth a schedule for the release 28 of those credits in the mitigation bank permit. A mitigation 29 credit that has been released may be sold or used to offset 30 adverse impacts from an activity regulated under this part. 31 (a)The department or the water management district shall 32 allow a portion of the mitigation credits awarded to a 33 mitigation bank to be released for sale or use before prior to 34 meeting all of the performance criteria specified in the 35 mitigation bank permit. The department or the water management 36 district shall allow the release of all of a mitigation banks 37 awarded mitigation credits only after the bank meets the 38 mitigation success criteria specified in the permit. If 39 mitigation credits are not available in sufficient quantities to 40 be sold or used to offset imminent and otherwise allowable 41 adverse impacts within a mitigation service area, the department 42 or water management district may release credits to a mitigation 43 bank before the bank meets the mitigation success criteria 44 specified in the mitigation bank permit if the bank has been 45 successfully constructed and there is a high degree of 46 confidence that the required ecological performance standards 47 will be met. 48 (b)The number of credits and schedule for release shall be 49 determined by the department or water management district based 50 upon the performance criteria for the mitigation bank and the 51 success criteria for each mitigation activity. The release 52 schedule for a specific mitigation bank or phase thereof shall 53 be related to the actions required to implement the bank, such 54 as site protection, site preparation, earthwork, removal of 55 wastes, planting, removal or control of nuisance and exotic 56 species, installation of structures, and annual monitoring and 57 management requirements for success. In determining the specific 58 release schedule for a bank, the department or water management 59 district shall consider, at a minimum, the following factors: 60 1.Whether the mitigation consists solely of preservation 61 or includes other types of mitigation. 62 2.The length of time anticipated to be required before a 63 determination of success can be achieved. 64 3.The ecological value to be gained from each action 65 required to implement the bank. 66 4.The financial expenditure required for each action to 67 implement the bank. 68 (c)Notwithstanding the provisions of this subsection, no 69 credit shall be released for freshwater wetland creation until 70 the success criteria included in the mitigation bank permit are 71 met. 72 (c)(d)The withdrawal of mitigation credits from a 73 mitigation bank shall be accomplished as a minor modification of 74 the mitigation bank permit. A processing fee may shall not be 75 required by the department or water management district for this 76 minor modification. 77 (d)If mitigation credits are not available in a basin, the 78 department or water management district shall allow the use of 79 mitigation credits available within surrounding basins or within 80 the appropriate United States Geological Survey hydrological 81 unit code in the appropriate buffer region. 82 (e)Wetland mitigation credits are deemed unavailable in a 83 basin if the party requesting the credits provides an affidavit 84 to the department or water management district signed by the 85 mitigation banks within the basin attesting that credits are not 86 available. The affidavit must be signed by each mitigation bank 87 within the 30 days preceding the date the request is submitted 88 to the department or water management district. Mitigation banks 89 without available wetland mitigation credits shall sign an 90 affidavit at the request of the party seeking the credits. If a 91 mitigation bank owner or agent is unable to release wetland 92 mitigation credits within 30 days after a request is made, the 93 mitigation bank is deemed to not have wetland mitigation credits 94 available. 95 (6)MITIGATION SERVICE AREA.The department or water 96 management district shall establish a mitigation service area 97 for each mitigation bank permit. The department or water 98 management district shall notify and consider comments received 99 on the proposed mitigation service area from each local 100 government within the proposed mitigation service area. Except 101 as provided herein, mitigation credits may be withdrawn and used 102 only to offset adverse impacts in the mitigation service area. 103 The boundaries of the mitigation service area shall depend upon 104 the geographic area where the mitigation bank could reasonably 105 be expected to offset adverse impacts. Mitigation service areas 106 may overlap, and mitigation service areas for two or more 107 mitigation banks may be approved for a regional watershed. 108 (d)If the requirements in s. 373.414(1)(b) and (8) are 109 met, the following projects or activities regulated under this 110 part shall be eligible to use a mitigation bank, regardless of 111 whether they are located within the mitigation service area: 112 1.Projects with adverse impacts partially located within 113 the mitigation service area. 114 2.Linear projects, such as roadways, transmission lines, 115 distribution lines, pipelines, railways, or seaports listed in 116 s. 311.09(1). 117 3.Projects with total adverse impacts of less than 1 acre 118 in size. 119 4.Projects approved by the department or water management 120 district on a case-by-case basis if sufficient quantities of 121 mitigation credits are not available to be sold or used to 122 offset imminent and otherwise allowable adverse impacts within a 123 mitigation service area. 124 Section 2.The Department of Environmental Protection shall 125 begin rulemaking to implement this act on August 1, 2023. 126 Section 3.This act shall take effect July 1, 2023.