Florida Senate - 2025 SB 492 By Senator McClain 9-00543-25 2025492__ 1 A bill to be entitled 2 An act relating to mitigation banking; amending s. 3 373.4136, F.S.; revising the schedule to which the 4 Department of Environmental Protection and water 5 management districts are required to adhere for the 6 release of credits awarded by a mitigation bank 7 permit; prohibiting the release of mitigation credits 8 for freshwater wetland creation until certain criteria 9 are met; requiring that a mitigation bank service area 10 established by the department or a water management 11 district for a mitigation bank be considered to have 12 met specified requirements; authorizing certain 13 projects or activities to use credits released from a 14 bank to offset impacts if certain requirements are 15 met; authorizing a project applicant to use credits 16 released from a mitigation bank outside a mitigation 17 service area to offset impacts if an insufficient 18 number or type of credits have been released in the 19 proposed project area under certain circumstances; 20 requiring the department and water management 21 districts to apply a certain multiplier in granting 22 the out-of-service area credits; declaring that use of 23 the multipliers meets the requirements for addressing 24 certain impacts; requiring the department or water 25 management district to contact all mitigation banks 26 within a specified area in a specified number of days 27 after an applicant requests to use credits from a 28 mitigation bank outside a specified area; requiring 29 such mitigation banks to provide an accounting within 30 a specified number of days; requiring the department 31 or water management district to make a certain 32 determination upon receipt of the accounting and 33 notify the applicant of such determination; 34 authorizing the applicant to rely on the determination 35 for a specified period of time; requiring mitigation 36 banks to submit annual reports to the department or 37 the districts which contain specified information; 38 requiring the department and each district to compile 39 the reports into an annual assessment and provide it 40 to the Legislature; reenacting ss. 373.403(19), 41 373.4135(1)(b), (3), (4), (5), (6)(c) and (g), and 42 (8)(c), 373.41365, and 373.414(1)(b), F.S., relating 43 to definitions, mitigation banks and offsite regional 44 mitigation, adoption and modification of rules to 45 ensure financial assurances for long-term management 46 of mitigation under ss. 373.4136 and 373.414, F.S., 47 and additional criteria for activities in surface 48 waters and wetlands, respectively, to incorporate the 49 amendment made to s. 373.4136, F.S., in references 50 thereto; providing an effective date. 51 52 Be It Enacted by the Legislature of the State of Florida: 53 54 Section 1.Subsection (5) and paragraphs (c) and (d) of 55 subsection (6) of section 373.4136, Florida Statutes, are 56 amended, and paragraphs (e) through (h) are added to subsection 57 (6) of that section, to read: 58 373.4136Establishment and operation of mitigation banks. 59 (5)SCHEDULE FOR CREDIT RELEASE.After issuing awarding 60 mitigation credits to a mitigation bank permit, the department 61 or the water management district shall adhere to the credit 62 release schedule set forth in paragraph (a) set forth a schedule 63 for the release of those credits awarded under in the mitigation 64 bank permit. A mitigation credit that has been released may be 65 sold or used to offset adverse impacts from an activity 66 regulated under this part. 67 (a)Credit release schedule. 68 1.Thirty percent of awarded credits for the recording of 69 the conservation easement and establishment of financial 70 assurances required by the mitigation bank permit, or 100 71 percent in the case of a preservation-only bank. 72 2.Thirty percent of awarded credits following completion 73 of initial construction activities as established by the 74 mitigation bank permit. 75 3.Twenty percent of awarded credits upon meeting interim 76 performance criteria established by the mitigation bank permit, 77 in increments as monitoring indicates success. 78 4.Twenty percent of awarded credits upon meeting final 79 success criteria established by the mitigation bank permit The 80 department or the water management district shall allow a 81 portion of the mitigation credits awarded to a mitigation bank 82 to be released for sale or use prior to meeting all of the 83 performance criteria specified in the mitigation bank permit. 84 The department or the water management district shall allow 85 release of all of a mitigation banks awarded mitigation credits 86 only after the bank meets the mitigation success criteria 87 specified in the permit. 88 (b)The number of credits and schedule for release shall be 89 determined by the department or water management district based 90 upon the performance criteria for the mitigation bank and the 91 success criteria for each mitigation activity. The release 92 schedule for a specific mitigation bank or phase thereof shall 93 be related to the actions required to implement the bank, such 94 as site protection, site preparation, earthwork, removal of 95 wastes, planting, removal or control of nuisance and exotic 96 species, installation of structures, and annual monitoring and 97 management requirements for success. In determining the specific 98 release schedule for a bank, the department or water management 99 district shall consider, at a minimum, the following factors: 100 1.Whether the mitigation consists solely of preservation 101 or includes other types of mitigation. 102 2.The length of time anticipated to be required before a 103 determination of success can be achieved. 104 3.The ecological value to be gained from each action 105 required to implement the bank. 106 4.The financial expenditure required for each action to 107 implement the bank. 108 (c)Notwithstanding the provisions of this subsection, no 109 credit shall be released for freshwater wetland creation until 110 the success criteria established included in the mitigation bank 111 permit for initial construction activities are met. 112 (c)(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 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 herein, mitigation credits may be withdrawn and used 124 only to offset adverse impacts in the mitigation service area. 125 The boundaries of the mitigation service area shall depend upon 126 the geographic area where the mitigation bank could reasonably 127 be expected to offset adverse impacts. Mitigation service areas 128 may overlap, and mitigation service areas for two or more 129 mitigation banks may be approved for a regional watershed. 130 (c)Once a mitigation bank service area has been 131 established by the department or a water management district for 132 a mitigation bank, such service area shall be accepted by all 133 water management districts, local governments, and the 134 department and shall be considered to have met the cumulative 135 impact requirements of s. 373.414(8)(a) for impacts permitted 136 within any regional watershed included in such mitigation bank 137 service area. 138 (d)If the requirements in s. 373.414(1)(b) and (8) are 139 met, the following projects or activities regulated under this 140 part shall be eligible to use credits released from a mitigation 141 bank to offset impacts resulting from such projects or 142 activities, regardless of whether they are located within the 143 mitigation service area: 144 1.Projects with adverse impacts partially located within 145 the mitigation service area. 146 2.Linear projects, such as roadways, transmission lines, 147 distribution lines, pipelines, railways, or seaports listed in 148 s. 311.09(1). 149 3.Projects with total adverse impacts of less than 1 acre 150 in size. 151 4.Projects that meet the requirements of s. 373.414(1)(b) 152 and the criteria set forth in paragraphs (e), (f), and (g). 153 (e)When the requirements of s. 373.414(1)(a) are met and 154 an insufficient number or type of credits have been released 155 within the mitigation bank service area in which the impacts 156 associated with a proposed project are located, the project 157 applicant may use credits released from a mitigation bank 158 outside such mitigation service area to offset impacts pursuant 159 to s. 373.414(1)(b). The project applicant may only use out-of 160 service area credits once the department or a water management 161 district verifies that mitigation banks within the regional 162 watershed where the adverse impacts are located lack the 163 appropriate credit type to offset impacts associated with the 164 proposed project, as established by the procedure detailed in 165 paragraph (h). If the number of released credits within a 166 mitigation service area only partially offsets the impacts 167 associated with a proposed project in that mitigation service 168 area, the project applicant may use out-of-service area credits 169 to account for the difference between the released credits 170 available in the mitigation bank service area and the credits 171 required to offset the impacts associated with the proposed 172 project. When implementing this paragraph, the department and 173 water management districts shall follow the following guidelines 174 to apply a proximity factor to determine adequate compensatory 175 mitigation by using the following process: 176 1.A multiplier may not be applied for use of out-of 177 service area credits located within the same regional watershed 178 as the proposed impacts. 179 2.A 1.5 multiplier shall be applied for use of out-of 180 service area credits located within a regional watershed 181 immediately adjacent to the regional watershed in which the 182 proposed impacts are located. 183 3.When credits are not available in the regional watershed 184 immediately adjacent to the regional watershed in which the 185 proposed impacts are located, an additional 0.50 multiplier 186 shall be applied for each additional regional watershed away 187 from the regional watershed immediately adjacent to the regional 188 watershed in which the proposed impacts are located. 189 4.An additional 0.75 multiplier shall be applied if the 190 mitigation used to offset impacts entails an out-of-kind 191 replacement which does not replace the same type of wetland or 192 surface water impacted. 193 (f)Use of the multipliers in subparagraphs (e)1., 2., 3. 194 and 4. meets the requirements of s. 373.414(8)(a) for addressing 195 cumulative impacts. 196 (g)Once a project applicant requests to use credits from a 197 mitigation bank outside the mitigation service area in which the 198 proposed impacts will occur, the department or the water 199 management district must contact all mitigation banks within a 200 mitigation service area encompassing the location of the 201 proposed impacts within 3 business days after the request from 202 the project applicant and request an accounting of available 203 credits, which may not include credits reserved for other 204 project applicants. The mitigation banks contacted by the 205 department or the water management district shall provide such 206 accounting within 5 business days after the request. Upon 207 receipt of the accounting from the mitigation banks, the 208 department or the water management district shall determine if 209 sufficient credits exist to offset impacts associated with the 210 proposed project and notify the project applicant of such 211 determination. The applicant may rely on the determination from 212 the department or the water management district for a period of 213 1 year after such determination. 214 (h)Each mitigation bank in this state shall submit an 215 annual report to the department or the applicable water 216 management district with an accounting of the number and type of 217 credits that the mitigation bank has available for sale, but the 218 report may not include names of parties for which credits have 219 been reserved, if any, or the contract price paid for such 220 credits. The department and each water management district shall 221 compile such annual reports and provide an annual assessment of 222 the health of the states mitigation banking system to the 223 President of the Senate and the Speaker of the House of 224 Representatives. 225 Section 2.For the purpose of incorporating the amendment 226 made by this act to section 373.4136, Florida Statutes, in a 227 reference thereto, subsection (19) of section 373.403, Florida 228 Statutes, is reenacted to read: 229 373.403Definitions.When appearing in this part or in any 230 rule, regulation, or order adopted pursuant thereto, the 231 following terms mean: 232 (19)Mitigation bank means a project permitted under s. 233 373.4136 undertaken to provide for the withdrawal of mitigation 234 credits to offset adverse impacts authorized by a permit under 235 this part. 236 Section 3.For the purpose of incorporating the amendment 237 made by this act to section 373.4136, Florida Statutes, in 238 references thereto, paragraph (b) of subsection (1), subsections 239 (3), (4), and (5), paragraphs (c) and (g) of subsection (6), and 240 paragraph (c) of subsection (8) of section 373.4135, Florida 241 Statutes, are reenacted to read: 242 373.4135Mitigation banks and offsite regional mitigation. 243 (1)The Legislature finds that the adverse impacts of 244 activities regulated under this part may be offset by the 245 creation, maintenance, and use of mitigation banks and offsite 246 regional mitigation. Mitigation banks and offsite regional 247 mitigation can enhance the certainty of mitigation and provide 248 ecological value due to the improved likelihood of environmental 249 success associated with their proper construction, maintenance, 250 and management. Therefore, the department and the water 251 management districts are directed to encourage the establishment 252 of private mitigation banks and offsite regional mitigation on 253 lands owned by a local government, when such lands are located 254 in a credit-deficient basin as defined in paragraph (8)(a) and 255 the proposed mitigation bank or offsite regional mitigation 256 would provide one or more of the deficient habitat type credits 257 described in subparagraph (8)(a)2. Mitigation banks and offsite 258 regional mitigation should emphasize the restoration and 259 enhancement of degraded ecosystems and the preservation of 260 uplands and wetlands as intact ecosystems rather than alteration 261 of landscapes to create wetlands. This is best accomplished 262 through restoration of ecological communities that were 263 historically present. 264 (b)The Legislature recognizes the importance of mitigation 265 banks as an appropriate and allowable mitigation alternative to 266 permittee-responsible mitigation. However, the Legislature also 267 recognizes that certain timing and geographical constraints 268 could result in the unavailability of mitigation bank credits 269 for a certain project upon completion of the projects 270 application. If state and federal mitigation credits are not 271 available to offset the adverse impacts of a project, a local 272 government may allow permittee-responsible mitigation consisting 273 of the restoration or enhancement of lands purchased and owned 274 by a local government for conservation purposes, and such 275 mitigation must conform to the permitting requirements of s. 276 373.4136. Except when a local government has allowed a public or 277 private mitigation project to be created on land it has 278 purchased for conservation purposes pursuant to this paragraph, 279 a governmental entity may not create or provide mitigation for a 280 project other than its own unless the governmental entity uses 281 land that was not previously purchased for conservation and 282 unless the governmental entity provides the same financial 283 assurances as required for mitigation banks permitted under s. 284 373.4136. This paragraph does not apply to: 285 1.Mitigation banks permitted before December 31, 2011, 286 under s. 373.4136; 287 2.Offsite regional mitigation areas established before 288 December 31, 2011, under subsection (6) or, when credits are not 289 available at a mitigation bank permitted under s. 373.4136, 290 mitigation areas created by a local government which were 291 awarded mitigation credits pursuant to the uniform mitigation 292 assessment method as provided in chapter 62-345, Florida 293 Administrative Code, under a permit issued before December 31, 294 2011; 295 3.Mitigation for transportation projects under ss. 296 373.4137 and 373.4139; 297 4.Mitigation for impacts from mining activities under s. 298 373.41492; 299 5.Mitigation provided for single-family lots or homeowners 300 under subsection (7); 301 6.Entities authorized in chapter 98-492, Laws of Florida; 302 7.Mitigation provided for electric utility impacts 303 certified under part II of chapter 403; or 304 8.Mitigation provided on sovereign submerged lands under 305 subsection (6). 306 (3)Nothing in this section or s. 373.4136 shall be 307 construed to eliminate or diminish any of the regulatory 308 requirements applicable to applicants seeking permits pursuant 309 to other provisions of this part. 310 (4)Except as otherwise provided herein, nothing in this 311 section or s. 373.4136 shall be construed to diminish or limit 312 the existing authority of the department, water management 313 districts, or local governments. 314 (5)Nothing in this section or s. 373.4136 shall be 315 construed to limit the consideration of forms of mitigation 316 other than mitigation banks and offsite regional mitigation. 317 (6)An environmental creation, preservation, enhancement, 318 or restoration project, including regional offsite mitigation 319 areas, for which money is donated or paid as mitigation, that is 320 sponsored by the department, a water management district, or a 321 local government and provides mitigation for five or more 322 applicants for permits under this part, or for 35 or more acres 323 of adverse impacts, shall be established and operated under a 324 memorandum of agreement. The memorandum of agreement shall be 325 between the governmental entity proposing the mitigation project 326 and the department or water management district, as appropriate. 327 Such memorandum of agreement need not be adopted by rule. For 328 the purposes of this subsection, one creation, preservation, 329 enhancement, or restoration project shall mean one or more 330 parcels of land with similar ecological communities that are 331 intended to be created, preserved, enhanced, or restored under a 332 common scheme. 333 (c)At a minimum, the memorandum of agreement must address 334 the following for each project authorized: 335 1.A description of the work that will be conducted on the 336 site and a timeline for completion of such work. 337 2.A timeline for obtaining any required environmental 338 resource permit. 339 3.The environmental success criteria that the project must 340 achieve. 341 4.The monitoring and long-term management requirements 342 that must be undertaken for the project. 343 5.An assessment of the project in accordance with s. 344 373.4136(4)(a)-(i), until the adoption of the uniform wetland 345 mitigation assessment method pursuant to s. 373.414(18). 346 6.A designation of the entity responsible for the 347 successful completion of the mitigation work. 348 7.A definition of the geographic area where the project 349 may be used as mitigation established using the criteria of s. 350 373.4136(6). 351 8.Full cost accounting of the project, including annual 352 review and adjustment. 353 9.Provision and a timetable for the acquisition of any 354 lands necessary for the project. 355 10.Provision for preservation of the site. 356 11.Provision for application of all moneys received solely 357 to the project for which they were collected. 358 12.Provision for termination of the agreement and 359 cessation of use of the project as mitigation if any material 360 contingency of the agreement has failed to occur. 361 (g)The provisions of this subsection shall not apply when 362 the department, water management district, or local government 363 establishes, or contracts with a private entity to establish, a 364 mitigation bank permitted under s. 373.4136. The provisions of 365 this subsection shall not apply to other entities that establish 366 offsite regional mitigation as defined in this section and s. 367 373.403. 368 (8)It is the intent of the Legislature to allow limited 369 use of local government land, including lands acquired for 370 conservation, for private sector mitigation banks, provided that 371 the private mitigation banks are located in credit-deficient 372 basins and would produce the habitat type credits that are 373 unavailable or insufficient in such basins. As used in this 374 subsection, the term local government includes a county, 375 municipality, or special district as those terms are defined in 376 s. 165.031. This subsection does not apply to lands owned by the 377 state or a water management district. 378 (c)If such a mitigation bank is to be established and 379 operated on local government land, the local government and 380 private applicant must enter into a use agreement that meets the 381 requirements of this paragraph and that requires the private 382 applicant to establish and operate the mitigation bank in 383 conformance with the permitting requirements of s. 373.4136, and 384 the rules adopted thereunder. The use agreement must: 385 1.Include a requirement that the local government 386 landowner assume the role of long-term steward of the property, 387 and state that the landowner will grant a conservation easement 388 or substantially similar recordable instrument pursuant to s. 389 704.06, in favor of the permitting agency, if a conservation 390 easement or substantially similar recordable instrument 391 acceptable to the permitting agency does not already exist; and 392 2.Include a requirement for the private applicant to do 393 all of the following: 394 a.Provide bid and performance security instruments for a 395 minimum of 5 percent of the total bid amount, to ensure that a 396 use agreement with the local government is executed and a 397 mitigation bank permit is applied for by the private applicant. 398 b.Operate and maintain the mitigation bank until final 399 permit success criteria are met, as permitted by the department 400 or water management district. 401 c.Agree to establish financial assurance for long-term 402 management in an amount agreeable to the local government 403 landowner and as provided for in rules adopted pursuant to this 404 section and s. 373.4136, for use by the local government as the 405 long-term steward of the land, after the mitigation bank final 406 environmental resource permit success criteria are met. The 407 private sector applicant may also use an endowment to provide 408 financial assurances. 409 d.Acknowledge that denial of the state mitigation bank 410 permit application will terminate the use agreement. 411 e.Acknowledge that failure to obtain the mitigation bank 412 permit within 2 years after the use agreement execution date 413 will terminate the use agreement, unless it is extended for good 414 cause by the local government. 415 Section 4.For the purpose of incorporating the amendment 416 made by this act to section 373.4136, Florida Statutes, in a 417 reference thereto, section 373.41365, Florida Statutes, is 418 reenacted to read: 419 373.41365Adoption and modification of rules to ensure 420 financial assurances for long-term management of mitigation 421 under ss. 373.4136 and 373.414.The Department of Environmental 422 Protection shall adopt and modify rules adopted pursuant to ss. 423 373.4136 and 373.414 to ensure that required financial 424 assurances are equivalent and sufficient to provide for the 425 long-term management of mitigation permitted under ss. 373.4136 426 and 373.414. The department, in consultation with the water 427 management districts, shall include the rulemaking required by 428 this section in existing active rulemaking, or shall complete 429 rule development by June 30, 2023. 430 Section 5.For the purpose of incorporating the amendment 431 made by this act to section 373.4136, Florida Statutes, in a 432 reference thereto, paragraph (b) of subsection (1) of section 433 373.414, Florida Statutes, is reenacted to read: 434 373.414Additional criteria for activities in surface 435 waters and wetlands. 436 (1)As part of an applicants demonstration that an 437 activity regulated under this part will not be harmful to the 438 water resources or will not be inconsistent with the overall 439 objectives of the district, the governing board or the 440 department shall require the applicant to provide reasonable 441 assurance that state water quality standards applicable to 442 waters as defined in s. 403.031 will not be violated and 443 reasonable assurance that such activity in, on, or over surface 444 waters or wetlands, as delineated in s. 373.421(1), is not 445 contrary to the public interest. However, if such an activity 446 significantly degrades or is within an Outstanding Florida 447 Water, as provided by department rule, the applicant must 448 provide reasonable assurance that the proposed activity will be 449 clearly in the public interest. 450 (b)If the applicant is unable to otherwise meet the 451 criteria set forth in this subsection, the governing board or 452 the department, in deciding to grant or deny a permit, must 453 consider measures proposed by or acceptable to the applicant to 454 mitigate adverse effects that may be caused by the regulated 455 activity. Such measures may include, but are not limited to, 456 onsite mitigation, offsite mitigation, offsite regional 457 mitigation, and the purchase of mitigation credits from 458 mitigation banks permitted under s. 373.4136. It is the 459 responsibility of the applicant to choose the form of 460 mitigation. The mitigation must offset the adverse effects 461 caused by the regulated activity. 462 1.The department or water management districts may accept 463 the donation of money as mitigation only where the donation is 464 specified for use in a duly noticed environmental creation, 465 preservation, enhancement, or restoration project, endorsed by 466 the department or the governing board of the water management 467 district, which offsets the impacts of the activity permitted 468 under this part. However, this subsection does not apply to 469 projects undertaken pursuant to s. 373.4137 or chapter 378. 470 Where a permit is required under this part to implement any 471 project endorsed by the department or a water management 472 district, all necessary permits must have been issued prior to 473 the acceptance of any cash donation. After the effective date of 474 this act, when money is donated to either the department or a 475 water management district to offset impacts authorized by a 476 permit under this part, the department or the water management 477 district shall accept only a donation that represents the full 478 cost to the department or water management district of 479 undertaking the project that is intended to mitigate the adverse 480 impacts. The full cost shall include all direct and indirect 481 costs, as applicable, such as those for land acquisition, land 482 restoration or enhancement, perpetual land management, and 483 general overhead consisting of costs such as staff time, 484 building, and vehicles. The department or the water management 485 district may use a multiplier or percentage to add to other 486 direct or indirect costs to estimate general overhead. 487 Mitigation credit for such a donation may be given only to the 488 extent that the donation covers the full cost to the agency of 489 undertaking the project intended to mitigate the adverse 490 impacts. However, nothing herein may be construed to prevent the 491 department or a water management district from accepting a 492 donation representing a portion of a larger project, provided 493 that the donation covers the full cost of that portion and 494 mitigation credit is given only for that portion. The department 495 or water management district may deviate from the full cost 496 requirements of this subparagraph to resolve a proceeding 497 brought pursuant to chapter 70 or a claim for inverse 498 condemnation. Nothing in this section may be construed to 499 require the owner of a private mitigation bank, permitted under 500 s. 373.4136, to include the full cost of a mitigation credit in 501 the price of the credit to a purchaser of said credit. 502 2.The department and each water management district shall 503 report by March 1 of each year, as part of the consolidated 504 annual report required by s. 373.036(7), all cash donations 505 accepted under subparagraph 1. during the preceding water 506 management district fiscal year for wetland mitigation purposes. 507 The report must exclude those contributions pursuant to s. 508 373.4137. The report must include a description of the endorsed 509 mitigation projects and, except for projects governed by s. 510 373.4135(6), must address, as applicable, success criteria, 511 project implementation status and timeframe, monitoring, long 512 term management, provisions for preservation, and full cost 513 accounting. 514 3.If the applicant is unable to meet water quality 515 standards because existing ambient water quality does not meet 516 standards, the governing board or the department must consider 517 mitigation measures proposed by or acceptable to the applicant 518 that cause net improvement of the water quality in the receiving 519 body of water for those parameters which do not meet standards. 520 4.If mitigation requirements imposed by a local government 521 for surface water and wetland impacts of an activity regulated 522 under this part cannot be reconciled with mitigation 523 requirements approved under a permit for the same activity 524 issued under this part, including application of the uniform 525 wetland mitigation assessment method adopted pursuant to 526 subsection (18), the mitigation requirements for surface water 527 and wetland impacts are controlled by the permit issued under 528 this part. 529 Section 6.This act shall take effect July 1, 2025.