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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: 66 373.4136Establishment 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 banks 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 banks 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 states 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: 291 704.06Conservation 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 districts 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.
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