§ 373.4135 — Mitigation banks and offsite regional mitigation

Florida § 373.4135

• Jurisdiction: Florida
• Title: XXVIII
• Ch. 373: WATER RESOURCES

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(1) The Legislature finds that the adverse impacts of activities regulated under this part may be offset by the creation, maintenance, and use of mitigation banks and offsite regional mitigation. Mitigation banks and offsite regional mitigation can enhance the certainty of mitigation and provide ecological value due to the improved likelihood of environmental success associated with their proper construction, maintenance, and management. Therefore, the department and the water management districts are directed to encourage the establishment of private mitigation banks and offsite regional mitigation on lands owned by a local government, when such lands are located in a credit-deficient basin as defined in paragraph (8)(a) and the proposed mitigation bank or offsite regional mitigation would provide one or more of the deficient habitat type credits described in subparagraph (8)(a)2. Mitigation banks and offsite regional mitigation should emphasize the restoration and enhancement of degraded ecosystems and the preservation of uplands and wetlands as intact ecosystems rather than alteration of landscapes to create wetlands. This is best accomplished through restoration of ecological communities that were historically present. (a) The Legislature intends that the provisions for establishing mitigation banks apply equally to both public and private entities, except that the rules of the department and water management districts may set forth different measures governing financial responsibility, and different measures governing legal interest, needed to ensure the construction and perpetual protection of a mitigation bank. (b) The Legislature recognizes the importance of mitigation banks as an appropriate and allowable mitigation alternative to permittee-responsible mitigation. However, the Legislature also recognizes that certain timing and geographical constraints could result in the unavailability of mitigation bank credits for a certain project upon completion of the project’s application. If state and federal mitigation credits are not available to offset the adverse impacts of a project, a local government may allow permittee-responsible mitigation consisting of the restoration or enhancement of lands purchased and owned by a local government for conservation purposes, and such mitigation must conform to the permitting requirements of s. 373.4136. Except when a local government has allowed a public or private mitigation project to be created on land it has purchased for conservation purposes pursuant to this paragraph, a governmental entity may not create or provide mitigation for a project other than its own unless the governmental entity uses land that was not previously purchased for conservation and unless the governmental entity provides the same financial assurances as required for mitigation banks permitted under s. 373.4136. This paragraph does not apply to: 1. Mitigation banks permitted before December 31, 2011, under s. 373.4136; 2. Offsite regional mitigation areas established before December 31, 2011, under subsection (6) or, when credits are not available at a mitigation bank permitted under s. 373.4136, mitigation areas created by a local government which were awarded mitigation credits pursuant to the uniform mitigation assessment method as provided in chapter 62-345, Florida Administrative Code, under a permit issued before December 31, 2011; 3. Mitigation for transportation projects under ss. 373.4137 and 373.4139; 4. Mitigation for impacts from mining activities under s. 373.41492; 5. Mitigation provided for single-family lots or homeowners under subsection (7); 6. Entities authorized in chapter 98-492, Laws of Florida; 7. Mitigation provided for electric utility impacts certified under part II of chapter 403; or 8. Mitigation provided on sovereign submerged lands under subsection (6). (c) It is the further intent of the Legislature that mitigation banks and offsite regional mitigation be considered appropriate and a permittable mitigation option under the conditions specified by the rules of the department and water management districts. (d) Offsite mitigation, including offsite regional mitigation, may be located outside the regional watershed in which the adverse impacts of an activity regulated under this part are located, if such adverse impacts are offset by the offsite mitigation. (e) The department or water management district may allow the use of a mitigation bank or offsite regional mitigation alone or in combination with other forms of mitigation to offset adverse impacts of activities regulated under this part. (f) When an applicant seeking a permit under this part other than this section and s. 373.4136 submits more than one mitigation proposal to the department or a water management district, the department or water management district shall, in evaluating each proposal, ensure that such proposal adequately offsets the adverse impacts.

(2) Local governments shall not deny the use of a mitigation bank or offsite regional mitigation due to its location outside of the jurisdiction of the local government.

(3) Nothing in this section or s. 373.4136 shall be construed to eliminate or diminish any of the regulatory requirements applicable to applicants seeking permits pursuant to other provisions of this part.

(4) Except as otherwise provided herein, nothing in this section or s. 373.4136 shall be construed to diminish or limit the existing authority of the department, water management districts, or local governments.

(5) Nothing in this section or s. 373.4136 shall be construed to limit the consideration of forms of mitigation other than mitigation banks and offsite regional mitigation.

(6) An environmental creation, preservation, enhancement, or restoration project, including regional offsite mitigation areas, for which money is donated or paid as mitigation, that is sponsored by the department, a water management district, or a local government and provides mitigation for five or more applicants for permits under this part, or for 35 or more acres of adverse impacts, shall be established and operated under a memorandum of agreement. The memorandum of agreement shall be between the governmental entity proposing the mitigation project and the department or water management district, as appropriate. Such memorandum of agreement need not be adopted by rule. For the purposes of this subsection, one creation, preservation, enhancement, or restoration project shall mean one or more parcels of land with similar ecological communities that are intended to be created, preserved, enhanced, or restored under a common scheme. (a) For any ongoing creation, preservation, enhancement, or restoration project and regional offsite mitigation area sponsored by the department, a water management district, or a local government, for which money was or is paid as mitigation, that was begun prior to the effective date of this subsection and has operated as of the effective date of this subsection, or is anticipated to operate, in excess of the mitigation thresholds provided in this subsection, the governmental entity sponsoring such project shall submit a draft memorandum of agreement to the water management district or department by October 1, 2000. The governmental entity sponsoring such project shall make reasonable efforts to obtain the final signed memorandum of agreement within 1 year after such submittal. The governmental entity sponsoring such project may continue to receive moneys donated or paid toward the project as mitigation, provided the requirements of this paragraph are met. (b) The memorandum of agreement shall establish criteria that each environmental creation, preservation, enhancement, or restoration project must meet. These criteria must address the elements listed in paragraph (c). The entity sponsoring such project, or category of projects, shall submit documentation or other evidence to the water management district or department that the project meets, or individual projects within a category meet, the specified criteria. (c) At a minimum, the memorandum of agreement must address the following for each project authorized: 1. A description of the work that will be conducted on the site and a timeline for completion of such work. 2. A timeline for obtaining any required environmental resource permit. 3. The environmental success criteria that the project must achieve. 4. The monitoring and long-term management requirements that must be undertaken for the project. 5. An assessment of the project in accordance with s. 373.4136(4)(a)-(i), until the adoption of the uniform wetland mitigation assessment method pursuant to s. 373.414(18). 6. A designation of the entity responsible for the successful completion of the mitigation work. 7. A definition of the geographic area where the project may be used as mitigation established using the criteria of s. 373.4136(6). 8. Full cost accounting of the project, including annual review and adjustment. 9. Provision and a timetable for the acquisition of any lands necessary for the project. 10. Provision for preservation of the site. 11. Provision for application of all moneys received solely to the project for which they were collected. 12. Provision for termination of the agreement and cessation of use of the project as mitigation if any material contingency of the agreement has failed to occur. (d) A single memorandum of understanding may authorize more than one environmental creation, preservation, enhancement, or restoration project, or category of projects, as long as the elements listed in paragraph (c) are addressed for each project. (e) Projects governed by this subsection, except for projects established pursuant to subsection (7), shall be subject to the provisions of s. 373.414(1)(b)1. (f) The provisions of this subsection shall not apply to mitigation areas established to implement the provisions of s. 373.4137. (g) The provisions of this subsection shall not apply when the department, water management district, or local government establishes, or contracts with a private entity to establish, a mitigation bank permitted under s. 373.4136. The provisions of this subsection shall not apply to other entities that establish offsite regional mitigation as defined in this section and s. 373.403.

(7) The department, water management districts, and local governments may elect to establish and manage mitigation sites, including regional offsite mitigation areas, or contract with permitted mitigation banks, to provide mitigation options for private single-family lots or homeowners. The department, water management districts, and local governments shall provide a written notice of their election under this subsection by United States mail to those individuals who have requested, in writing, to receive such notice. The use of mitigation options established under this subsection are not subject to the full-cost-accounting provision of s. 373.414(1)(b)1. To use a mitigation option established under this subsection, the applicant for a permit under this part must be a private, single-family lot or homeowner, and the land upon which the adverse impact is located must be intended for use as a single-family residence by the current owner. The applicant must not be a corporation, partnership, or other business entity. However, the provisions of this subsection shall not apply to other entities that establish offsite regional mitigation as defined in this section and s. 373.403.

(8) It is the intent of the Legislature to allow limited use of local government land, including lands acquired for conservation, for private sector mitigation banks, provided that the private mitigation banks are located in credit-deficient basins and would produce the habitat type credits that are unavailable or insufficient in such basins. As used in this subsection, the term “local government” includes a county, municipality, or special district as those terms are defined in s. 165.031. This subsection does not apply to lands owned by the state or a water management district. (a) A basin is considered to be a credit-deficient basin if it is a drainage basin or a corresponding hydrologic unit code, and has all of the following features: 1. At least one mitigation bank has been permitted and established on lands not owned by a governmental entity, and that mitigation bank no longer has one of the habitat type credits listed in subparagraph 2. available for purchase; 2. There is a documented shortage of either forested freshwater, non-forested freshwater, forested saltwater, or non-forested saltwater habitat type credits; and 3. Pending mitigation bank applications on private land or pending credit releases from mitigation banks on nongovernmental land are unlikely to alleviate the credit shortage. (b) A local government with land in a credit-deficient basin may, through the public procurement processes identified in chapter 287 or other established competitive procurement processes, consider a proposal from a private entity applicant for the right to establish a mitigation bank on the local government land, including such lands purchased for conservation purposes, provided acquisition encumbrances do not exist to the contrary. (c) If such a mitigation bank is to be established and operated on local government land, the local government and private applicant must enter into a use agreement that meets the requirements of this paragraph and that requires the private applicant to establish and operate the mitigation bank in conformance with the permitting requirements of s. 373.4136, and the rules adopted thereunder. The use agreement must: 1. Include a requirement that the local government landowner assume the role of long-term steward of the property, and state that the landowner will grant a conservation easement or substantially similar recordable instrument pursuant to s. 704.06, in favor of the permitting agency, if a conservation easement or substantially similar recordable instrument acceptable to the permitting agency does not already exist; and 2. Include a requirement for the private applicant to do all of the following: a. Provide bid and performance security instruments for a minimum of 5 percent of the total bid amount, to ensure that a use agreement with the local government is executed and a mitigation bank permit is applied for by the private applicant. b. Operate and maintain the mitigation bank until final permit success criteria are met, as permitted by the department or water management district. c. Agree to establish financial assurance for long-term management in an amount agreeable to the local government landowner and as provided for in rules adopted pursuant to this section and s. 373.4136, for use by the local government as the long-term steward of the land, after the mitigation bank final environmental resource permit success criteria are met. The private sector applicant may also use an endowment to provide financial assurances. d. Acknowledge that denial of the state mitigation bank permit application will terminate the use agreement. e. Acknowledge that failure to obtain the mitigation bank permit within 2 years after the use agreement execution date will terminate the use agreement, unless it is extended for good cause by the local government. (d) Public funds may not be used to fund the financial assurances for construction and implementation of the mitigation bank or for the establishment of the long-term management financial assurances. (e) In determining the number of mitigation bank credits to be awarded to a mitigation bank established pursuant to this subsection, the proposed mitigation bank’s location in or adjacent to the local government conservation lands may not increase the uniform mitigation assessment method location factor assessment and scoring value, even if the conservation status of the mitigation bank land is improved due to such location. (f) Credit deficiency is confirmed at the time the use agreement is executed by the parties. Once confirmed, the mitigation bank application may proceed, even if the deficiency is relieved. (g) While not required, the department, in coordination with the water management districts, may adopt rules to implement this subsection.

Legislative History

s. 29, ch. 93-213; s. 6, ch. 96-371; s. 2, ch. 2000-133; s. 8, ch. 2001-62; s. 4, ch. 2012-174; s. 1, ch. 2019-110; s. 2, ch. 2024-144.