The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Rules
BILL: CS/CS/SB 492
INTRODUCER: Rules Committee; Appropriations Committee on Agriculture, Environment, and General
Government and Senator McClain
SUBJECT: Land Development
DATE: April 22, 2025
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Barriero Rogers EN Favorable
2. Reagan Betta AEG Fav/CS
3. Barriero Yeatman RC Fav/CS
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/CS/SB 492 provides a standardized schedule for releasing mitigation credits and removes the
requirement that the Department of Environmental Protection (DEP) and water management
districts determine the credit release schedule on a case-by-case basis pursuant to statutorily
enumerated factors. The bill provides that credits must be released as follows:
• 30 percent upon recording a conservation easement and establishing financial assurances (or
100 percent for preservation-only banks).
• 30 percent after completing initial construction activities.
• 20 percent upon meeting interim performance criteria.
• 20 percent upon meeting final success criteria.
Additionally, the bill allows freshwater wetland creation credits to be released before all the
success criteria have been met. Only success criteria for initial construction success criteria need
to be met.
The bill provides that permit applicants are entitled to a one-time use of credits from a mitigation
bank outside the mitigation bank service area when an insufficient number or type of credits are
available within the impacted area. The DEP or a water management district must have
determined that the mitigation service area lacked the appropriate credit type and the
implementation of permittee-responsible mitigation was not sufficient to offset impacts before
REVISED: BILL: CS/CS/SB 492 Page 2
approving credits outside the service area. The bill provides that the following multipliers would
apply to credits outside the service area:
• 1.0 multiplier for use of in-kind credits within the service area.
• 1.0 multiplier for use of in-kind and out-of-service-area credits when the service area
overlays part of the same regional watershed as the proposed impacts only after credit-
deficiency has been established.
• 1.2 multiplier for use of in-kind and out-of-service-area credits located within a regional
watershed immediately adjacent to the regional watershed overlain by a mitigation bank
service area in which proposed impacts are located only after credit-deficiency has been
established only after credit-deficiency has been established.
• When in-kind credits are not available to offset impacts in the regional watershed
immediately adjacent to the regional watershed overlain by a bank service area in which the
proposed impacts are located, an additional 0.25 multiplier shall be applied for each
additional regional watershed boundary crossed.
• An additional 0.50 multiplier shall be applied if the mitigation used to offset impacts entails
an out-of-kind replacement.
The bill provides that use of these multipliers meets the requirements for addressing cumulative
impacts.
Once the amount of mitigation required to offset impacts is determined, the DEP or water
management district must contact all mitigation banks with a service area encompassing the
location of the proposed impacts within seven days to verify the availability of credits. The
mitigation banks have 15 days to respond; if no response is received, it is presumed credits from
that bank are not available. The DEP or water management district must then notify the permit
applicant if sufficient credits are available. The bill also requires mitigation banks to submit
annual reports detailing the number and type of available credits for sale. The DEP and water
management districts must compile these reports and provide an annual assessment of the state’s
mitigation banking system to the Legislature.
The bill has no impact on state revenues or expenditures. See Section V., Fiscal Impact
Statement.
The bill has an effective date of July 1, 2025.
II. Present Situation:
Environmental Resource Permits (ERP)
Part IV of ch. 373, F.S., and ch. 62-330, F.A.C., regulate the statewide ERP program, which
governs the construction, alteration, operation, maintenance, repair, abandonment, and removal
of stormwater management systems, dams, impoundments, reservoirs, appurtenant works, and
other works such as docks, piers, structures, dredging, and filling located in, on, or over wetlands BILL: CS/CS/SB 492 Page 3
or other surface waters.
1
ERP applications are processed by either the Department of
Environmental Protection (DEP) or one of Florida’s five water management districts.
2
Permit applicants must demonstrate that the regulated activity will not be harmful to the water
resources or will not be inconsistent with the overall objectives of the water management
district.
3
Applicants must provide reasonable assurance that state water quality standards will not
be violated and that the proposed activity is not contrary to the public interest.
4
If a proposed
activity significantly degrades or is within an Outstanding Florida Water,
5
the applicant must
provide reasonable assurance that the proposed activity will be clearly in the public interest.
6
In
determining whether an activity is contrary to the public interest or clearly in the public interest,
the water management district or the DEP must consider and balance the following criteria:
• Whether the activity will adversely affect the public health, safety, or welfare or the property
of others;
• Whether the activity will adversely affect the conservation of fish and wildlife, including
endangered or threatened species, or their habitats;
• Whether the activity will adversely affect navigation or the flow of water or cause harmful
erosion or shoaling;
• Whether the activity will adversely affect the fishing or recreational values or marine
productivity in the vicinity of the activity;
• Whether the activity will be of a temporary or permanent nature;
• Whether the activity will adversely affect or will enhance significant historical and
archaeological resources; and
• The current condition and relative value of functions being performed by areas affected by
the proposed activity.
7
If the applicant is unable to otherwise meet this criteria, the DEP or the governing board of a
water management district, in deciding to grant or deny a permit, must consider measures
proposed by or acceptable to the applicant to mitigate adverse effects of the regulated activity.
8
Such measures may include onsite mitigation, offsite mitigation, offsite regional mitigation, and
the purchase of mitigation credits from mitigation banks.
9
In deciding whether to grant or deny a permit for an activity that affects surface waters or
wetlands, the DEP or the water management district must consider the cumulative impacts of:
• The proposed activity;
1
Fla. Admin. Code R. 62-330.010(2).
2
DEP, Environmental Resource Permitting Coordination, Assistance, Portals, https://floridadep.gov/water/submerged-lands-
environmental-resources-coordination/content/environmental-resource-
permitting#:~:text=The%20Environmental%20Resource%20Permit%20(ERP,alteration%20of%20surface%20water%20flow
s (last visited Mar. 5, 2025).
3
Section 373.414(1), F.S.
4
Id.
5
An Outstanding Florida Water is a water designated worthy of special protection because of its natural attributes. DEP,
Outstanding Florida Waters, https://floridadep.gov/dear/water-quality-standards/content/outstanding-florida-waters (last
visited Feb. 7, 2025); see Fla. Admin. Code R. 62-302.700(2) and (9).
6
Section 373.414(1), F.S.
7
Section 373.414(1)(a), F.S.
8
Section 373.414(1)(b), F.S.
9
Id. BILL: CS/CS/SB 492 Page 4
• Other projects that already exist, are under construction, or have applied for permits or
formal wetland or surface water determinations;
• Activities related to developments of regional impact
10
which are under review, approved, or
vested, or other activities regulated under Part IV of chapter 373, F.S., which may reasonably
be expected to be located within surface waters or wetlands in the same drainage basin based
upon a local government’s comprehensive plans.
11
These cumulative impacts must be evaluated within the same drainage basin as the proposed
activity.
12
Overview of Mitigation Banking
Mitigation banking is a practice in which an environmental enhancement and preservation
project is conducted by a public agency or private entity to provide mitigation for unavoidable
wetland impacts within a defined mitigation service area.
13
Mitigation banks are alternative to
permittee-responsible mitigation.
14
Permittee-responsible mitigation refers to mitigation
undertaken by the permittee to provide compensatory mitigation for which the permittee retains
full responsibility.
15
In mitigation banking, the bank is the site itself, and the currency sold by the banker to the
impact permittee is a credit, representing the wetland ecological value equivalent to the complete
restoration of one acre.
16
Creation of a mitigation bank in Florida typically requires both a permit
from the DEP or a water management district and federal approval of a mitigation bank
instrument from several agencies led by the U.S. Army Corps of Engineers (USACE), in a joint
state/federal interagency review team.
17
Requirements for mitigation bank permits differ between
mitigation bank instruments issued by the USACE and state permits issued by the DEP or the
water management districts.
The Uniform Mitigation Assessment Method (UMAM) was established as a way to determine
the amount of mitigation needed to offset adverse impacts to wetlands and other surface waters
and to award and deduct mitigation bank credits.
18
The UMAM provides a standardized
procedure for assessing the ecological functions provided by wetlands and other surface waters,
10
“Development of regional impact” means any development that, because of its character, magnitude, or location, would
have a substantial effect upon the health, safety, or welfare of citizens of more than one county. Section 380.06(1), F.S.
11
Section 373.414(8)(a), F.S.
12
Id.
13
DEP, Mitigation and Mitigation Banking, https://floridadep.gov/water/submerged-lands-environmental-resources-
coordination/content/mitigation-and-mitigation-banking (last visited Feb. 17, 2025). “Mitigation service area” means the
geographic area within which mitigation credits from a mitigation bank may be used to offset adverse impacts of activities
regulated under this part. Section 373.403(21), F.S.
14
Section 373.4135(1)(b), F.S.
15
EPA, Mechanisms for Providing Compensatory Mitigation under CWA Section 404, https://www.epa.gov/cwa-
404/mechanisms-providing-compensatory-mitigation-under-cwa-section-404 (last visited Feb. 17, 2025).
16
DEP, Mitigation and Mitigation Banking, https://floridadep.gov/water/submerged-lands-environmental-resources-
coordination/content/mitigation-and-mitigation-banking (last visited Feb. 17, 2025).
17
DEP, Mitigation Banking Rule and Procedure Synopsis, https://floridadep.gov/water/submerged-lands-environmental-
resources-coordination/content/mitigation-banking-rule-and (last visited Feb. 17, 2025).
18
See section 373.414(18), F.S. BILL: CS/CS/SB 492 Page 5
the amount that those functions are reduced by a proposed impact, and the amount of mitigation
necessary to offset that loss.
19
The
UMAM evaluates functions through consideration of an ecological community’s current
condition, hydrologic connection, uniqueness, location, fish and wildlife utilization, and
mitigation risk.
20
This standardized methodology is also used to determine the degree of
improvement in ecological value of proposed mitigation bank activities.
21
State Mitigation Banking Regulations
To obtain a mitigation bank permit, the applicant must provide reasonable assurance that the
mitigation bank will:
• Improve ecological conditions of the regional watershed;
• Provide viable and sustainable ecological and hydrological functions for the proposed
mitigation service area;
• Be effectively managed in perpetuity;
• Not destroy areas with high ecological value;
• Achieve mitigation success; and
• Be adjacent to lands that will not adversely affect the long-term viability of the mitigation
bank due to unsuitable land uses or conditions.
22
The applicant must also provide reasonable assurances that:
• Any surface water management system that will be constructed, altered, operated,
maintained, abandoned, or removed within a mitigation bank will meet ERP requirements
and related rules;
• The applicant has sufficient legal or equitable interest in the property to ensure perpetual
protection and management of the land within a mitigation bank; and
• The applicant can meet the financial responsibility requirements prescribed for mitigation
banks.
23
Mitigation Bank Credits
After evaluating the permit application, the permitting agency awards mitigation credits to a
proposed mitigation bank or phase of such mitigation bank.
24
The number of credits awarded is
based on the degree of improvement in ecological value expected to result from the
establishment and operation of the mitigation bank as determined using a functional assessment
methodology.
25
In determining the degree of improvement in ecological value, specific factors
must be evaluated, including, among other things, the ecological and hydrological relationship
19
DEP, The Uniform Mitigation Assessment Method (UMAM), https://floridadep.gov/water/submerged-lands-environmental-
resources-coordination/content/uniform-mitigation-assessment (last visited Feb. 17, 2025).
20
Id.
21
Id.
22
Section 373.4136(1), F.S.
23
Id.; Fla. Admin. Code R. 62-342.400.
24
Section 373.4136(4), F.S., An entity establishing and operating a mitigation bank may apply to modify the mitigation bank
permit to seek the award of additional mitigation credits if the mitigation bank results in an additional increase in ecological
value over the value contemplated at the time of the original permit issuance, or the most recent modification thereto
involving the number of credits awarded. Id.
25
Id. BILL: CS/CS/SB 492 Page 6
between wetlands and uplands in the mitigation bank and the proximity of the mitigation bank to
areas with regionally significant ecological resources or habitats, and the extent to which the
mitigation bank provides habitat for fish and wildlife.
26
After awarding mitigation credits to a mitigation bank, the permitting agency establishes a
schedule for the release of those credits in the mitigation bank permit.
27
A mitigation credit that
has been released may be sold or used to offset adverse impacts from a regulated activity.
28
A
portion of the mitigation credits can be released for sale or use prior to meeting all the
performance criteria specified in the mitigation bank permit.
29
However, the permitting agency
will only release the full amount of awarded credits after all success criteria are met.
30
The permitting agency determines the number of credits and schedule for release based on the
performance criteria for the mitigation bank and the success criteria for each mitigation
activity.
31
The release schedule for a specific mitigation bank or phase thereof is related to the
actions required to implement the bank, such as site protection, site preparation, earthwork,
removal of wastes, planting, removal or control of nuisance and exotic species, installation of
structures, and annual monitoring and management requirements for success. In determining the
specific release schedule for a bank, the permitting agency must consider, at a minimum, the
following factors:
• Whether the mitigation consists solely of preservation or includes other types of mitigation.
• The length of time anticipated to be required before a determination of success can be
achieved.
• The ecological value to be gained from each action required to implement the bank.
• The financial expenditure required for each action to implement the bank.
32
However, no credit can be released for freshwater wetland creation until the success criteria
included in the mitigation bank permit are met.
33
Mitigation Service Area
During the permitting of a mitigation bank, the permitting agency (the DEP or a water
management district) determines the mitigation service area, which is the geographic region
within which the bank could reasonably be expected to offset impacts.
34
In determining the
boundaries of the mitigation service area, the permitting agency must consider the
characteristics, size, and location of the mitigation bank and, at a minimum, the extent to which
the mitigation bank:
• Contributes to a regional integrated ecological network;
26
Section 373.4136(4), F.S.
27
Section 373.4136(5), F.S.
28
Id.
29
Section 373.4136(5)(a), F.S.
30
Id.
31
Section 373.4136(5)(b), F.S.
32
Section 373.4136(5)(b), F.S.
33
Section 373.4136(5)(c), F.S.
34
DEP, Mitigation Banking Rule and Procedure Synopsis, https://floridadep.gov/water/submerged-lands-environmental-
resources-coordination/content/mitigation-banking-rule-and (last visited Feb. 13, 2025); section 373.4136(6), F.S. BILL: CS/CS/SB 492 Page 7
• Will significantly enhance the water quality or restoration of an offsite receiving water body
that is designated as an Outstanding Florida Water, a Wild and Scenic River, an aquatic
preserve, a water body designated in a plan approved pursuant to the Surface Water
Improvement and Management Act, or a nationally designated estuarine preserve;
• Will provide for the long-term viability of endangered or threatened species or species of
special concern;
• Is consistent with the objectives of a regional management plan adopted or endorsed by the
department or water management districts; and
• Can reasonably be expected to offset specific types of wetland impacts within a specific
geographic area. A mitigation bank need not offset all expected impacts within its service
area.
35
The DEP and the water management districts use regional watersheds to guide the establishment
of mitigation service areas.
36
A mitigation service area may extend beyond the regional
watershed in which the bank is located into all or part of other regional watersheds when the
mitigation bank has the ability to offset adverse impacts outside that regional watershed.
37
Similarly, a mitigation service area may be smaller than the regional watershed in which the
mitigation bank is located when adverse impacts throughout the regional watershed cannot
reasonably be expected to be offset by the mitigation bank because of local ecological or
hydrological conditions.
38
In general, mitigation credits may only be used to offset adverse impacts in the mitigation service
area.
39
However, if certain requirements are met, the following projects may be eligible to use a
mitigation bank regardless of whether they are located within the mitigation service area:
• Projects with adverse impacts partially located within the mitigation service area.
• Linear projects, such as roadways, transmission lines, distribution lines, pipelines, railways,
or certain seaports.
• Projects with total adverse impacts of less than one acre in size.
40
Federal Mitigation Banking Regulations
For projects requiring a federal permit, a USACE district engineer determines the mitigation to
be required in a mitigation bank permit based on what is practicable and capable of
compensating for the aquatic resource functions that will be lost as a result of the permitted
activity.
41
When evaluating options for mitigation, the USACE considers the type and location
options in the following order (commonly referred to as the mitigation preference hierarchy):
• Mitigation bank credits;
35
Id.
36
Section 373.4136(6)(b), F.S. Regional watersheds within each water management district are specifically delineated in
DEP rules. See Fla. Admin. Code R. 62-342.200(9).
37
Section 373.4136(6)(b), F.S.
38
Id.
39
Section 373.4136(6), F.S.
40
Section 373.4136(6)(d), F.S.
41
33 C.F.R. 332.3(a)(1). BILL: CS/CS/SB 492 Page 8
• In-lieu fee program credits;
42
• Permittee-responsible mitigation under a watershed approach;
43
• Permittee-responsible mitigation through on-site and in-kind
44
mitigation; or
• Permittee-responsible mitigation through off-site and/or out-of-kind
45
mitigation.
46
In general, the required mitigation should be located within the same watershed as the impact site
and where it is most likely to successfully replace lost functions and services, taking into account
watershed scale features as aquatic habitat diversity, habitat connectivity, relationships to
hydrologic sources, trends in land use, ecological benefits, and compatibility with adjacent land
uses.
47
When compensating for impacts to marine resources, the location of the mitigation site
should be chosen to replace lost functions and services within the same marine ecological system
(e.g., reef complex, littoral drift cell).
48
Compensation for impacts to aquatic resources in coastal
watersheds should also be located in a coastal watershed where practicable.
49
Mitigation Bank Credits
When permitted impacts are located within the service area of an approved mitigation bank, and
the bank has the appropriate number and resource type of credits available, the permittee’s
compensatory mitigation requirements may be met by securing those credits from a mitigation
bank.
50
An approved instrument (including an approved mitigation plan and appropriate real
estate and financial assurances) must be in place before credits can be used to compensate for
authorized impacts.
51
Mitigation bank credits are not released until specific milestones associated
with the mitigation bank site’s protection and development are achieved.
52
If the USACE determines that mitigation is necessary to offset unavoidable impacts to aquatic
resources, the amount of required mitigation must be, to the extent practicable, sufficient to
replace lost aquatic resource functions.
53
The USACE requires a mitigation ratio greater than
one-to-one where necessary to account for (1) the distance between the affected aquatic resource
and the compensation site, (2) the method of mitigation (e.g., preservation), (3) the likelihood of
success, (4) differences between the functions lost at the impact site and the functions expected
42
An in-lieu fee program is a program involving the restoration, establishment, enhancement, and/or preservation of aquatic
resources through funds paid to a governmental or non-profit natural resources management entity to satisfy compensatory
mitigation requirements for DA permits. Similar to a mitigation bank, an in-lieu fee program sells compensatory mitigation
credits to permittees whose obligation to provide compensatory mitigation is then transferred to the in-lieu program sponsor.
However, the rules governing the operation and use of in-lieu fee programs are somewhat different from the rules governing
operation and use of mitigation banks. 33 C.F.R. 332.2.
43
Permittee-responsible mitigation means an aquatic resource restoration, establishment, enhancement, and/or preservation
activity undertaken by the permittee (or an authorized agent or contractor) to provide compensatory mitigation for which the
permittee retains full responsibility. 33 C.F.R. 332.2.
44
In-kind means a resource of a similar structural and functional type to the impacted resource. 33 C.F.R. 332.2.
45
Out-of-kind means a resource of a different structural and functional type from the impacted resource. 33 C.F.R. 332.2.
46
See 33 C.F.R. 332.3(b).
47
33 C.F.R. 332.3(b)(1).
48
Id.
49
Id.
50
33 C.F.R. 332.3(b)(1).
51
33 C.F.R. 332.3(b)(2).
52
Id.
53
33 C.F.R. 332.3(f)(1). BILL: CS/CS/SB 492 Page 9
to be produced by the mitigation project, (5) temporal losses of aquatic resource functions,
and/or (5) the difficulty of restoring or establishing the desired aquatic resource type and
functions.
54
Mitigation Service Area
Under federal law, the mitigation service area is the watershed, ecoregion,
55
physiographic
province, or other geographic area within which the mitigation bank is authorized to provide
compensatory mitigation required by USACE permits.
56
The service area must be appropriately
sized to ensure that the aquatic resources provided will effectively compensate for adverse
environmental impacts across the entire service area.
57
For example, in urban areas, a U.S.
Geological Survey 8-digit hydrologic unit code (HUC)
58
watershed or a smaller watershed may
be an appropriate service area.
59
In rural areas, several contiguous 8-digit HUCs or a 6-digit
HUC watershed may be an appropriate service area.
60
Delineation of the service area must also
consider any locally-developed standards and criteria that may be applicable.
61
The economic
viability of the mitigation bank may also be considered in determining the size of the service
area.
62
USACE Proximity Factor Tool
The USACE developed a proximity factor tool that may be used when there are insufficient
mitigation credits within the approved mitigation bank service area. The tool is used to assess the
number of credits required for any compensatory mitigation proposed outside of approved
mitigation bank service areas.
63
The proximity factor is based on ratio multipliers for multiple
54
33 C.F.R. 332.3(f)(2).
55
Ecoregions are areas where ecosystems (and the type, quality, and quantity of environmental resources) are generally
similar. A Roman numeral classification scheme has been adopted for different hierarchical levels of ecoregions, ranging
from general regions to more detailed: Level I - 12 ecoregions in the continental U.S.; Level II - 25 ecoregions in the
continental U.S.; Level III -105 ecoregions in the continental U.S.; Level IV - 967 ecoregions in the conterminous U.S. EPA,
Ecoregions, https://www.epa.gov/eco-research/ecoregions (last visited Feb. 14, 2025).
56
33 C.F.R. 332.8(d)(6)(ii)(A).
57
Id.
58
“HUC” means the hydrologic cataloging unit assigned to a geographic area representing a surface watershed drainage basin.
Each unit is assigned a two- to 12-digit number that uniquely identifies each of the six levels of classification within six two-
digit fields. United States Geological Survey (USGS), Hydrologic Unit Codes (HUCs) Explained ,
https://nas.er.usgs.gov/hucs.aspx (last visited Mar. 3, 2025). Eight-digit HUCs are used for large watersheds known as
subbasins; 10-digit HUCs divide the large subbasins into watersheds; and 12-digit HUCs divide watersheds into subwatersheds
that capture local tributary systems. EPA, Hydrologic Unit Codes: HUC 4, HUC 8, and HUC 12, available at
https://enviroatlas.epa.gov/enviroatlas/datafactsheets/pdf/Supplemental/HUC.pdf; DEP, About the Florida National
Hydrography Dataset, https://floridadep.gov/dear/watershed-services-program/content/about-florida-national-hydrography-
dataset (last visited Mar. 3, 2025).
59
33 C.F.R. 332.8(d)(6)(ii)(A).
60
Id.
61
Id.
62
Id.
63
USACE, Standard Operating Procedure—Assessing a Proximity Factor for Compensatory Mitigation Required to Offset
Unavoidable Impacts to Waters of the United States, 1 (2023), available at
https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll15/id/1998. BILL: CS/CS/SB 492 Page 10
variables.
64
The tool is only applied when the USACE has determined that mitigation outside of
the approved mitigation service area is the most environmentally preferable mitigation option.
65
The proximity factor tool applies the following multipliers:
• No multiplier if the impact site is outside of a mitigation bank service area boundary, but
within the same 8-digit HUC that contains the mitigation bank location.
• 1.5 multiplier if the impact site is outside of a mitigation bank service area boundary and one
8-digit HUC away from the mitigation bank service area boundary.
• 0.25 multiplier for each additional 8-digit HUC away from the mitigation bank location.
• 0.75 multiplier if mitigation entails out-kind replacement (there is no multiplier if the
mitigation entails in-kind replacement).
• 0.25 multiplier if mitigation occurs within a different EPA Level IV Ecoregion.
66
The sum of the applicable multipliers provides the proximity factor.
67
The resulting proximity
factor is then multiplied by the number of credits required by the USACE to compensate for
unavoidable adverse effects to aquatic resources (e.g., via application of an approved functional
assessment such as UMAM).
68
The USACE has the discretion to consider and approve use of the
proximity factor tool on a case-by-case basis.
69
Mitigation should be performed within the same 6-digit HUC.
70
When assessing the location of
the mitigation site relative to the impact site, the calculation starts at the 8-digit HUC that
contains the mitigation bank site.
71
III. Effect of Proposed Changes:
Section 1 amends s. 373.4136, F.S., regarding the establishment and operation of mitigation
banks. Currently, the Department of Environmental Protection (DEP) and the water management
districts are authorized to set the schedule for releasing mitigation credits to each mitigation bank
on a case-by-case basis based on the performance criteria for the mitigation bank, the success
criteria for each mitigation activity, and other enumerated factors.
72
The bill requires the DEP and the water management districts, after July 1, 2025, to adhere to the
following credit release schedule:
64
Id.
65
Id. at 3.
66
Id.
67
USACE, Standard Operating Procedure—Assessing a Proximity Factor for Compensatory Mitigation Required to Offset
Unavoidable Impacts to Waters of the United States at 1, 4, available at
https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll15/id/1998.
68
Id.
69
Id. at 5.
70
Id. at 5.
71
Id.
72
Section 373.4136(5)(b), F.S. The factors include (1) whether the mitigation consists solely of preservation or includes other
types of mitigation; (2) the length of time anticipated to be required before a determination of success can be achieved; (3)
the ecological value to be gained from each action required to implement the bank; and (4) the financial expenditure required
for each action to implement the bank. Id. BILL: CS/CS/SB 492 Page 11
• 30 percent of awarded credits upon the recordation of the conservation easement and
establishment of financial assurances required by the mitigation bank permit. If a
preservation-only assessment area is used, 100 percent of awarded credits must be released
for the recordation of the conservation easement and establishment of financial assurances
required by the mitigation bank permit.
• 30 percent of awarded credits following completion of initial construction activities as
established by the mitigation bank permit.
• 20 percent of awarded credits in increments as monitoring indicates interim performance
criteria established by the mitigation bank permit are being met.
• 20 percent of awarded credits upon meeting final success criteria established by the
mitigation bank permit
The bill provides that the mitigation bank applicant may propose an alternative credit release
schedule, and the DEP or water management district must consider the proposed alternative
credit release schedule. Upon request by a mitigation bank permittee for modification of the
credit release schedule of a permitted mitigation bank, the DEP or water management district
must modify the credit release schedule to conform it to the bill’s credit release schedule if such
permitted mitigation bank has not yet had mitigation credits released for the completion of
construction activities. The DEP or water management district may not alter, change, or modify
any other provision of the mitigation bank permit unrelated to the credit release schedule.
Currently, credits cannot be released for freshwater wetland creation until the success criteria
included in the mitigation bank permit are met. The bill allows these types of credits to be
released sooner, after the success criteria for initial construction activities are met.
The bill provides that once a mitigation bank service area has been established by the DEP or a
water management district, such service area must be considered to have met the cumulative
impact requirements of s. 373.414(8)(a), F.S.,
73
for impacts permitted within any regional
watershed included in the mitigation bank service area.
The bill provides that, when the provisions of s. 373.414(1)(b) and (8), F.S., are met and an
insufficient number or type of credits from banks whose permitted service area overlays in whole
or in part the regional watershed in which the impacts occur, the permit applicant is entitled to a
one-time use of credits released from a mitigation bank outside the mitigation bank service area
to offset impacts. The DEP or water management district must have determined that the
mitigation service area lacked the appropriate credit type and the implementation of permittee-
responsible mitigation was not sufficient to offset impacts associated with the proposed project.
Priority must be given to mitigation banks whose permitted service area fully includes the
impacted site.
73
Section 373.414(8)(a), F.S., provides that, in deciding whether to grant a permit for an activity that affects surface waters
or wetlands, the permitting agency must consider the cumulative impacts of (1) the proposed activity; (2) other projects that
already exist, are under construction, or have applied for permits or formal wetland or surface water determinations; and (3)
activities related to developments of regional impact which are under review, approved, or vested, or other activities
regulated under Part IV of chapter 373, F.S., which may reasonably be expected to be located within surface waters or
wetlands in the same drainage basin based upon a local government’s comprehensive plans. BILL: CS/CS/SB 492 Page 12
The bill provides that, if the number of released credits within a mitigation service area only
partially offsets the impacts associated with a proposed project in that mitigation service area, the
project applicant may use out-of-service area credits to account for the difference between the
released credits available in the mitigation bank service area and the credits required to offset the
impacts associated with the proposed project. The bill requires the DEP and the water
management districts to follow the following guidelines to apply a proximity factor to determine
adequate compensatory mitigation as follows:
• A 1.0 multiplier shall be applied for use of in-kind credits within the service area.
• A 1.0 multiplier shall be applied for use of in-kind and out-of-service-area credits when the
service area overlays part of the same regional watershed as the proposed impacts only after
credit-deficiency has been established.
• A 1.2 multiplier shall be applied for use of in-kind and out-of-service-area credits located
within a regional watershed immediately adjacent to the regional watershed overlain by a
mitigation bank service area in which proposed impacts are located only after credit-
deficiency has been established only after credit-deficiency has been established.
• When in-kind credits are not available to offset impacts in the regional watershed
immediately adjacent to the regional watershed overlain by a bank service area in which the
proposed impacts are located, an additional 0.25 multiplier shall be applied for each
additional regional watershed boundary crossed.
• An additional 0.50 multiplier shall be applied if the mitigation used to offset impacts entails
an out-of-kind replacement.
The bill provides that the use of these multipliers meets the requirements for addressing
cumulative impacts.
The bill provides that, once the amount of mitigation required to offset impacts has been
determined, and the DEP or water management district determines that out-of-service-area or
out-of-kind mitigation is necessary, the DEP or water management district must contact all
mitigation banks within a mitigation service area encompassing the location of the proposed
impacts within seven business days after the request from the project applicant and request an
accounting of available credits, including out-of-kind credits. The accounting may not include
credits reserved for other project applicants. The mitigation banks contacted must provide such
accounting within 15 business days after the request.
If one or more mitigation banks replying to the request notifies the DEP or the water
management district that out-of-kind credits are available to offset the proposed impact and the
DEP or water management district determines that such out-of-kind credits are appropriate to
offset all or part of the proposed impact, the DEP or water management district must notify the
permit applicant that sufficient credits are available within that bank’s service area to offset the
proposed impacts and the use of credits from another mitigation bank outside of that other
mitigation bank’s service area may not occur until use of all of the out-of-kind credits occurs. If a
mitigation bank does not reply within the 15 business day timeframe, it is presumed credits from
that bank are not available.
Upon receipt of the accounting from the mitigation banks, the DEP or the water management
district must determine if sufficient credits exist to offset impacts associated with the proposed
project and notify the project applicant of such determination, within 15 business days. The BILL: CS/CS/SB 492 Page 13
applicant, and no other entity, may rely on the determination for a period of six months after
such determination, but only for purposes relating to the pending application producing such
determination and not any extensions, nor renewals, nor modifications of any permit issued
pursuant to that pending application, nor for any other permit application.
The bill requires, beginning July 1, 2026, and each July 1 thereafter, each mitigation bank to
submit an annual report to the DEP or the applicable water management district with an
accounting of the number and type of credits that the mitigation bank has available for sale, but
the report may not include names of parties for which credits have been reserved, if any, or the
contract price paid for such credits. The DEP and each water management district must compile
such annual reports and provide an annual assessment of this state’s mitigation banking system
to the Legislature on October 1, 2026, and each October 1 thereafter.
Section 2 provides an effective date of July 1, 2025.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None. BILL: CS/CS/SB 492 Page 14
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends sections 373.4136 and 704.06 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS/CS by Rules on April 21, 2025:
The committee substitute removes the section on the release of conservation easements. It
also:
• Provides that, before out-of-service-area credits are used, the Department of
Environmental Protection (DEP) or water management district must determine the
mitigation service area lacks the appropriate credit type and permittee-responsible
mitigation is insufficient to offset the project’s impacts.
• Provides that priority must be given to mitigation banks whose permitted service area
fully includes the impact site.
• Clarifies that the proximity factor may only be used after credit-deficiency has been
established.
• Provides that DEP or water management district must contact mitigation banks for an
accounting of available credits only after the amount of mitigation required for a
project has been determined and out-of-service-area or out-of-kind credits is
determined to be necessary.
• Provides that if out-of-kind credits are available and appropriate to offset the project’s
impacts, DEP or the water management district must notify the permit applicant that
such credits are available; out-of-service area credits may not be used until all the out-
of-kind credits within the service area are used.
• Extends the deadline for when DEP must contact mitigation banks for an accounting
of available credits from 3 to 7 days.
• Provides that, upon request, DEP or water management district must modify a
permittee’s credit release schedule to conform with the schedule in the bill if
mitigation credits have not been released for the completion of construction activities.
• Reduces the timeframe an applicant may rely on the determination of credit
availability from 1 year to 6 months. BILL: CS/CS/SB 492 Page 15
• Clarifies that the presumption that credits are unavailable only applies to credits from
the bank that failed to reply to DEP’s request for an accounting of credits.
• Changes the title to land development.
CS by Appropriations Committee on Agriculture, Environment, and General
Government on April 10, 2025:
The committee substitute makes the following changes:
• Allows a mitigation bank applicant to propose to the department or water
management district an alternative credit release schedule instead of the schedule
provided in the bill.
• Clarifies the regional ecological significance of mitigation banks.
• Reduces the multipliers used when no mitigation credits are available in an impacted
watershed.
• Increases the time in which a mitigation bank must respond to a request by DEP or
water management district for an accounting of available credits and provides that if a
mitigation bank does not respond within 15 days, it is presumed credits are not
available.
• Increases the time in which DEP or water management district must make a
determination if sufficient credits exist in the impacted area to offset the impacts and
clarifies that only the permit applicant, and no other entity, can rely on the
determination.
• Allows for the release of conservation easements on small, low or non-functioning
wetlands that are surrounded by development provided the property owner purchases
sufficient mitigation bank credits to offset the impact. The process replaces low-
quality wetlands with the preservation of high-quality wetlands and allows the parcel
to be used for its highest and best use and returned to the tax rolls.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.