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Florida Senate - 2025 CS for CS for SB 492 By the Committee on Rules; the Appropriations Committee on Agriculture, Environment, and General Government; and Senator McClain 595-03803-25 2025492c2 1 A bill to be entitled 2 An act relating to land development; 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; requiring the Department of 9 Environmental Protection or water management district 10 to modify an existing permitted credit release 11 schedule upon request under certain circumstances; 12 prohibiting mitigation credits from being released for 13 freshwater wetland creation until certain conditions 14 are met; authorizing one-time use of mitigation 15 credits outside the mitigation bank service area in 16 certain circumstances; requiring the department and 17 water management districts to apply proximity factor 18 multipliers in a specified manner; specifying that the 19 use of certain multipliers meets certain requirements; 20 requiring the department or water management district 21 to request an accounting of credit availability from 22 mitigation banks within a specified timeframe; 23 specifying the timeframe to reply to such request; 24 requiring the permit applicant to be notified of 25 credits available; providing a presumption if a 26 mitigation bank does not respond within a certain 27 timeframe; limiting the timeframe for the permit 28 applicant to rely on a credit availability 29 determination for specified purposes; requiring each 30 mitigation bank to submit an accounting of credits; 31 requiring the department or water management district 32 to compile such accountings for a specified purpose 33 and to submit a report including certain information 34 to the Legislature on a specified date and annually 35 thereafter; providing an effective date. 36 37 Be It Enacted by the Legislature of the State of Florida: 38 39 Section 1.Subsections (5) and (6) of section 373.4136, 40 Florida Statutes, are amended to read: 41 373.4136Establishment and operation of mitigation banks. 42 (5)SCHEDULE FOR CREDIT RELEASE.After July 1, 2025, when 43 issuing awarding mitigation credits to a mitigation bank permit, 44 the department or the water management district shall adhere to 45 the credit release schedule set forth in paragraph (a) a 46 schedule for the release of those credits awarded by in the 47 mitigation bank permit. A mitigation credit that has been 48 released may be sold or used to offset adverse impacts from an 49 activity regulated under this part. 50 (a)1.Thirty percent of awarded credits shall be released 51 upon the recordation of the conservation easement and 52 establishment of financial assurances required by the mitigation 53 bank permit. If a preservation-only assessment area is used, 100 54 percent of awarded credits shall be released for the recordation 55 of the conservation easement and establishment of financial 56 assurances required by the mitigation bank permit. 57 2.Thirty percent of awarded credits shall be released 58 following completion of initial construction activities as 59 established by the mitigation bank permit. 60 3.Twenty percent of awarded credits shall be released in 61 increments as monitoring indicates interim performance criteria 62 established by the mitigation bank permit are being met. 63 4.Twenty percent of awarded credits shall be released upon 64 meeting final success criteria established by the mitigation 65 bank permit. 66 (b)The mitigation bank applicant may propose an 67 alternative credit release schedule and the department or water 68 management district shall consider the proposed alternative 69 credit release schedule. 70 (c)Upon request by a mitigation bank permittee for 71 modification of the credit release schedule of a permitted 72 mitigation bank, the department or relevant water management 73 district shall modify the credit release schedule to conform it 74 to paragraph (a) if such permitted mitigation bank has not yet 75 had mitigation credits released for the completion of 76 construction activities. The department or water management 77 district may not alter, change, or modify any other provision of 78 the mitigation bank permit unrelated to the credit release 79 schedule The department or the water management district shall 80 allow a portion of the mitigation credits awarded to a 81 mitigation bank to be released for sale or use prior to meeting 82 all of the performance criteria specified in the mitigation bank 83 permit. The department or the water management district shall 84 allow release of all of a mitigation banks awarded mitigation 85 credits only after the bank meets the mitigation success 86 criteria specified in the permit. 87 (b)The number of credits and schedule for release shall be 88 determined by the department or water management district based 89 upon the performance criteria for the mitigation bank and the 90 success criteria for each mitigation activity. The release 91 schedule for a specific mitigation bank or phase thereof shall 92 be related to the actions required to implement the bank, such 93 as site protection, site preparation, earthwork, removal of 94 wastes, planting, removal or control of nuisance and exotic 95 species, installation of structures, and annual monitoring and 96 management requirements for success. In determining the specific 97 release schedule for a bank, the department or water management 98 district shall consider, at a minimum, the following factors: 99 1.Whether the mitigation consists solely of preservation 100 or includes other types of mitigation. 101 2.The length of time anticipated to be required before a 102 determination of success can be achieved. 103 3.The ecological value to be gained from each action 104 required to implement the bank. 105 4.The financial expenditure required for each action to 106 implement the bank. 107 (d)(c)Notwithstanding the provisions of this subsection, a 108 mitigation no credit may not shall be released for freshwater 109 wetland creation until the success criteria established included 110 in the mitigation bank permit for initial construction 111 activities are met. 112 (e)(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 is not 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 in this section herein, mitigation credits may be 124 withdrawn and used only to offset adverse impacts in the 125 mitigation service area. The boundaries of the mitigation 126 service area shall depend upon the geographic area where the 127 mitigation bank could reasonably be expected to offset adverse 128 impacts. Mitigation service areas may overlap, and mitigation 129 service areas for two or more mitigation banks may be approved 130 for a regional watershed. 131 (a)In determining the boundaries of the mitigation service 132 area, the department or the water management district shall 133 consider the characteristics, size, and location of the 134 mitigation bank and, at a minimum, the extent to which the 135 mitigation bank: 136 1.Contributes to a regional integrated ecological network; 137 2.Will significantly enhance the water quality or 138 restoration of an offsite receiving water body that is 139 designated as an Outstanding Florida Water, a Wild and Scenic 140 River, an aquatic preserve, a water body designated in a plan 141 approved pursuant to the Surface Water Improvement and 142 Management Act, or a nationally designated estuarine preserve; 143 3.Will provide for the long-term viability of endangered 144 or threatened species or species of special concern; 145 4.Is consistent with the objectives of a regional 146 management plan adopted or endorsed by the department or water 147 management districts; and 148 5.Can reasonably be expected to offset specific types of 149 wetland impacts within a specific geographic area. A mitigation 150 bank need not be able to offset all expected impacts within its 151 service area. 152 (b)The department and water management districts shall use 153 regional watersheds to guide the establishment of mitigation 154 service areas. Drainage basins established pursuant to s. 155 373.414(8) may be used as regional watersheds when they are 156 established based on the hydrological or ecological 157 characteristics of the basin. A mitigation service area may 158 extend beyond the regional watershed in which the bank is 159 located into all or part of other regional watersheds when the 160 mitigation bank has the ability to offset adverse impacts 161 outside that regional watershed. Similarly, a mitigation service 162 area may be smaller than the regional watershed in which the 163 mitigation bank is located when adverse impacts throughout the 164 regional watershed cannot reasonably be expected to be offset by 165 the mitigation bank because of local ecological or hydrological 166 conditions. 167 (c)Once a mitigation bank service area has been 168 established by the department or a water management district for 169 a mitigation bank, such mitigation bank shall be deemed to 170 implement a plan that provides regional ecological value; such 171 service area shall be accepted by all water management 172 districts, local governments, and the department; and the use of 173 credits from such mitigation bank to offset impacts within that 174 banks service area shall be considered to have met the 175 cumulative impact requirements of s. 373.414(8)(a). 176 (d)If the provisions of requirements in s. 373.414(1)(b) 177 and (8) are met and an insufficient number or type of credits 178 from banks whose permitted service area overlays in whole or in 179 part the regional watershed in which the impacts occur, the 180 permit applicant is entitled to a one-time use of credits 181 released from a mitigation bank outside the mitigation bank 182 service area to offset impacts pursuant to s. 373.414(1)(b), as 183 established by the procedure in paragraph (f). The department or 184 water management district must have determined that the 185 mitigation service area lacked the appropriate credit type and 186 the implementation of permittee-responsible mitigation was not 187 sufficient to offset impacts associated with the proposed 188 project. Priority must be given to mitigation banks whose 189 permitted service area fully includes the impacted site. If the 190 number of released credits within a mitigation service area only 191 partially offsets the impacts associated with a proposed project 192 in the mitigation service area, the permit applicant may only 193 use out-of-service-area credits to account for the difference 194 between the released credits available in the mitigation bank 195 service area and the credits required to offset the impacts 196 associated with the proposed project. In implementing this 197 subsection, the department and water management districts shall 198 apply a proximity factor to determine adequate compensatory 199 mitigation as follows: 200 1.A 1.0 multiplier shall be applied for use of in-kind 201 credits within the service area. 202 2.A 1.0 multiplier shall be applied for use of in-kind and 203 out-of-service-area credits when the service area overlays part 204 of the same regional watershed as the proposed impacts only 205 after credit-deficiency has been established by the procedure 206 set forth in paragraph (f). 207 3.A 1.2 multiplier shall be applied for use of in-kind and 208 out-of-service-area credits located within a regional watershed 209 immediately adjacent to the regional watershed overlain by a 210 bank service area in which proposed impacts are located only 211 after credit-deficiency has been established by the procedure 212 set forth in paragraph (f). 213 4.When in-kind credits are not available to offset impacts 214 in the regional watershed immediately adjacent to the regional 215 watershed overlain by a mitigation bank service area in which 216 the proposed impacts are located, an additional 0.25 multiplier 217 shall be applied for each additional regional watershed boundary 218 crossed only after credit-deficiency has been established by the 219 procedure set forth in paragraph (f). 220 5.An additional 0.50 multiplier shall be applied after any 221 multipliers required in subparagraphs 1.-4., if the mitigation 222 used to offset impacts entails out-of-kind replacement. 223 (e)Use of the multipliers in subparagraphs (d)2., 3., 4., 224 and 5. meets the requirements of s. 373.414(8)(a) for addressing 225 cumulative impacts. 226 (f)Once the amount of mitigation required to offset 227 impacts has been determined, and the department or water 228 management district determines that out-of-service-area or out 229 of-kind mitigation is necessary, the department or water 230 management district shall contact all mitigation banks with a 231 mitigation service area encompassing the location of the 232 proposed impacts within 7 business days after receipt of the 233 request from the permit applicant and request an accounting of 234 available credits, including out-of-kind credits. The accounting 235 may not include credits reserved for other permit applicants. 236 The mitigation banks contacted by the department or water 237 management district shall be allowed 15 business days after 238 receipt of the request by the department or water management 239 district to reply to such request. If one or more mitigation 240 banks replying to the request notifies the department or the 241 water management district that out-of-kind credits are available 242 to offset the proposed impact and the department or a water 243 management district determines that such out-of-kind credits are 244 appropriate to offset all or part of the proposed impact, the 245 department or the water management district shall notify the 246 permit applicant that sufficient credits are available within 247 that banks service area to offset the proposed impacts and the 248 use of credits from another mitigation bank outside of that 249 other mitigation banks service area may not occur until use of 250 all of the out-of-kind credits occurs as allowed by the 251 department or water management district. If a mitigation bank 252 does not reply within the 15 business day timeframe, it is 253 presumed credits from that bank are not available. Upon receipt 254 of the accounting from the mitigation banks, the department or 255 water management district shall determine if sufficient credits 256 are available to offset impacts associated with the proposed 257 project and notify the permit applicant of such determination 258 within 15 business days. The permit applicant, and no other 259 entity, may rely on the determination from the department or 260 water management district for a period of 6 months beginning on 261 the date the department or water management district notifies 262 the permit applicant of such determination, but only for 263 purposes relating to the pending application producing such 264 determination and not any extensions, nor renewals, nor 265 modifications of any permit issued pursuant to that pending 266 application, nor for any other permit application. 267 (g)Beginning July 1, 2026, and each July 1 thereafter, 268 each mitigation bank in this state shall submit to the 269 department or water management district an accounting of the 270 number and type of credits the mitigation bank has available for 271 sale. The accounting may not include names of parties for which 272 credits have been reserved or the contract price paid for the 273 credits. The department or water management district shall 274 compile the information to provide an assessment of this states 275 mitigation banking system and submit a report to the President 276 of the Senate and the Speaker of the House of Representatives on 277 October 1, 2026, and each October 1 thereafter, the following 278 projects or activities regulated under this part shall be 279 eligible to use a mitigation bank, regardless of whether they 280 are located within the mitigation service area: 281 1.Projects with adverse impacts partially located within 282 the mitigation service area. 283 2.Linear projects, such as roadways, transmission lines, 284 distribution lines, pipelines, railways, or seaports listed in 285 s. 311.09(1). 286 3.Projects with total adverse impacts of less than 1 acre 287 in size. 288 Section 2.This act shall take effect July 1, 2025.
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