§ 373.4136 — Establishment and operation of mitigation banks

Florida § 373.4136

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

Text

(1) MITIGATION BANK PERMITS. — The department and the water management districts may require permits to authorize the establishment and use of mitigation banks. A mitigation bank permit shall also constitute authorization to construct, alter, operate, maintain, abandon, or remove any surface water management system necessary to establish and operate the mitigation bank. To obtain a mitigation bank permit, the applicant must provide reasonable assurance that: (a) The proposed mitigation bank will improve ecological conditions of the regional watershed; (b) The proposed mitigation bank will provide viable and sustainable ecological and hydrological functions for the proposed mitigation service area; (c) The proposed mitigation bank will be effectively managed in perpetuity; (d) The proposed mitigation bank will not destroy areas with high ecological value; (e) The proposed mitigation bank will achieve mitigation success; (f) The proposed mitigation bank will be adjacent to lands that will not adversely affect the perpetual viability of the mitigation bank due to unsuitable land uses or conditions; (g) Any surface water management system to be constructed, altered, operated, maintained, abandoned, or removed within the mitigation bank will meet the requirements of this part and the rules adopted thereunder; (h) It has sufficient legal or equitable interest in the property to ensure perpetual protection and management of the land within a mitigation bank; and (i) It can meet the financial responsibility requirements prescribed for mitigation banks.

(2) MITIGATION BANK PHASES. — A mitigation bank may be established and operated in phases if each phase independently meets the requirements for the establishment and operation of a mitigation bank. The number of mitigation credits assigned to a phase of a mitigation bank may be less than would be assigned to that phase upon completion of all phases of the mitigation bank. In such case, the department or water management districts shall increase the number of mitigation credits awarded to subsequent phases of the mitigation bank.

(3) ADDITION OF LANDS. — The department or water management district shall authorize the addition of land to a permitted mitigation bank when it is appropriate to do so and the addition of the land results in an increase in the ecological value of the existing mitigation bank. Any such addition shall be accomplished through a modification to the permit which reflects the corresponding increase in the total number of mitigation credits assigned to the bank.

(4) MITIGATION CREDITS. — After evaluating the information submitted by the applicant for a mitigation bank permit and assessing the proposed mitigation bank pursuant to the criteria in this section, the department or water management district shall award a number of mitigation credits to a proposed mitigation bank or phase of such mitigation bank. 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. The number of credits awarded shall be 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. In determining the degree of improvement in ecological value, each of the following factors, at a minimum, shall be evaluated: (a) The extent to which target hydrologic regimes can be achieved and maintained. (b) The extent to which management activities promote natural ecological conditions, such as natural fire patterns. (c) The proximity of the mitigation bank to areas with regionally significant ecological resources or habitats, such as national or state parks, Outstanding National Resource Waters and associated watersheds, Outstanding Florida Waters and associated watersheds, and lands acquired through governmental or nonprofit land acquisition programs for environmental conservation; and the extent to which the mitigation bank establishes corridors for fish, wildlife, or listed species to those resources or habitats. (d) The quality and quantity of wetland or upland restoration, enhancement, preservation, or creation. (e) The ecological and hydrological relationship between wetlands and uplands in the mitigation bank. (f) The extent to which the mitigation bank provides habitat for fish and wildlife, especially habitat for species listed as threatened, endangered, or of special concern, or provides habitats that are unique for that mitigation service area. (g) The extent to which the lands that are to be preserved are already protected by existing state, local, or federal regulations or land use restrictions. (h) The extent to which lands to be preserved would be adversely affected if they were not preserved. (i) Any special designation or classification of the affected waters and lands.

(5) SCHEDULE FOR CREDIT RELEASE. — After July 1, 2025, when issuing a mitigation bank permit, the department or the water management district shall adhere to the credit release schedule set forth in paragraph (a) for the release of credits awarded by the mitigation bank permit. A mitigation credit that has been released may be sold or used to offset adverse impacts from an activity regulated under this part. (a)1. Thirty percent of awarded credits shall be released 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 shall be released for the recordation of the conservation easement and establishment of financial assurances required by the mitigation bank permit. 2. Thirty percent of awarded credits shall be released following completion of initial construction activities as established by the mitigation bank permit. 3. Twenty percent of awarded credits shall be released in increments as monitoring indicates interim performance criteria established by the mitigation bank permit are being met. 4. Twenty percent of awarded credits shall be released upon meeting final success criteria established by the mitigation bank permit. (b) The mitigation bank applicant may propose an alternative credit release schedule, and the department or water management district shall consider the proposed alternative credit release schedule. (c) Upon request by a mitigation bank permittee for modification of the credit release schedule of a permitted mitigation bank, the department or relevant water management district shall modify the credit release schedule to conform it to paragraph (a) if such permitted mitigation bank has not yet had mitigation credits released for the completion of construction activities. The department or water management district may not alter, change, or modify any other provision of the mitigation bank permit unrelated to the credit release schedule. (d) Notwithstanding this subsection, a mitigation credit may not be released for freshwater wetland creation until the success criteria established in the mitigation bank permit for initial construction activities are met. (e) The withdrawal of mitigation credits from a mitigation bank shall be accomplished as a minor modification of the mitigation bank permit. A processing fee is not required by the department or water management district for this minor modification.

(6) MITIGATION SERVICE AREA. — The department or water management district shall establish a mitigation service area for each mitigation bank permit. The department or water management district shall notify and consider comments received on the proposed mitigation service area from each local government within the proposed mitigation service area. Except as provided in this section, mitigation credits may be withdrawn and used only to offset adverse impacts in the mitigation service area. The boundaries of the mitigation service area shall depend upon the geographic area where the mitigation bank could reasonably be expected to offset adverse impacts. Mitigation service areas may overlap, and mitigation service areas for two or more mitigation banks may be approved for a regional watershed. (a) In determining the boundaries of the mitigation service area, the department or the water management district shall consider the characteristics, size, and location of the mitigation bank and, at a minimum, the extent to which the mitigation bank: 1. Contributes to a regional integrated ecological network; 2. 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; 3. Will provide for the long-term viability of endangered or threatened species or species of special concern; 4. Is consistent with the objectives of a regional management plan adopted or endorsed by the department or water management districts; and 5. Can reasonably be expected to offset specific types of wetland impacts within a specific geographic area. A mitigation bank need not be able to offset all expected impacts within its service area. (b) The department and water management districts shall use regional watersheds to guide the establishment of mitigation service areas. Drainage basins established pursuant to s. 373.414(8) may be used as regional watersheds when they are established based on the hydrological or ecological characteristics of the basin. 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. 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. (c) Once a mitigation bank service area has been established by the department or a water management district for a mitigation bank, such mitigation bank shall be deemed to implement a plan that provides regional ecological value; such service area shall be accepted by all water management districts, local governments, and the department; and the use of credits from such mitigation bank to offset impacts within that bank’s service area shall be considered to have met the cumulative impact requirements of s. 373.414(8)(a). (d) If the provisions of s. 373.414(1)(b) and (8) 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 pursuant to s. 373.414(1)(b), as established by the procedure in paragraph (f). The department or water management district must have determined that the mitigation service area lacked the appropriate credit type. Priority must be given to mitigation banks whose permitted service area fully includes the impacted site. If the number of released credits within a mitigation service area only partially offsets the impacts associated with a proposed project in the mitigation service area, the permit applicant may only 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. In implementing this subsection, the department and water management districts shall apply a proximity factor to determine adequate compensatory mitigation as follows: 1. A 1.0 multiplier shall be applied for use of in-kind credits within the service area. 2. 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 by the procedure set forth in paragraph (f). 3. 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 bank service area in which proposed impacts are located only after credit deficiency has been established by the procedure set forth in paragraph (f). 4. When in-kind credits are not available to offset impacts in the regional watershed immediately adjacent to the regional watershed overlain by a mitigation 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 only after credit deficiency has been established by the procedure set forth in paragraph (f). 5. An additional 0.50 multiplier shall be applied after any multipliers required in subparagraphs 1.-4., if the mitigation used to offset impacts entails out-of-kind replacement. (e) Use of the multipliers in subparagraphs (d)2.-5. meets the requirements of s. 373.414(8)(a) for addressing cumulative impacts. (f) Once the amount of mitigation required to offset impacts has been determined, and the department or water management district determines that out-of-service-area or out-of-kind mitigation is necessary, the department or water management district shall contact all mitigation banks with a mitigation service area encompassing the location of the proposed impacts within 7 business days after receipt of the request from the permit applicant and request an accounting of available credits, including out-of-kind credits. The accounting may not include credits reserved for other permit applicants. The mitigation banks contacted by the department or water management district shall be allowed 15 business days after receipt of the request by the department or water management district to reply to such request. If one or more mitigation banks replying to the request notifies the department or the water management district that out-of-kind credits are available to offset the proposed impact and the department or a water management district determines that such out-of-kind credits are appropriate to offset all or part of the proposed impact, the department or the water management district shall 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 as allowed by the department or water management district. 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 department or water management district shall determine if sufficient credits are available to offset impacts associated with the proposed project and notify the permit applicant of such determination within 15 business days. The permit applicant, and no other entity, may rely on the determination from the department or water management district for a period of 6 months beginning on the date the department or water management district notifies the permit applicant of 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. (g) Beginning July 1, 2026, and each July 1 thereafter, each mitigation bank in this state shall submit to the department or water management district an accounting of the number and type of credits the mitigation bank has available for sale. The accounting may not include names of parties for which credits have been reserved or the contract price paid for the credits. The department or water management district shall compile the information to provide an assessment of this state’s mitigation banking system and submit a report to the President of the Senate and the Speaker of the House of Representatives on October 1, 2026, and each October 1 thereafter.

(7) ACCOUNTING. — The department or the water management district shall provide for the accounting of the award, release, and use of mitigation credits from a mitigation bank.

(8) AUTHORITY OF LOCAL GOVERNMENTS. — Local governments may not require permits or otherwise impose regulations governing the operation of a mitigation bank. However, this section shall not be construed to limit the authority of a local government to require an applicant for a mitigation bank to obtain any authorization required by a local ordinance for the construction activities associated with a mitigation bank.

(9) PRIOR APPLICATIONS. — An application for a mitigation bank conceptual approval or mitigation bank permit which is pending with, and determined complete by, the department or a water management district on or before the effective date of this act, or a mitigation bank conceptual approval or mitigation bank permit issued on or before the effective date of this act, shall continue to be subject to the rules adopted pursuant to s. 373.4135 which were in effect on the effective date of this act, unless the applicant or permittee elects to be subject to the rules governing mitigation banks adopted after that date.

(10) MODIFICATION WITH RESPECT TO PRIOR APPLICATIONS. — Any application for a modification of a mitigation bank conceptual approval or mitigation bank permit which was pending with, and determined complete by, the department or water management district on or before the effective date of this act, shall continue to be subject to the rules adopted pursuant to s. 373.4135 in effect on the effective date of this act, unless the permittee elects to be subject to the rules governing mitigation banks adopted after that date. Any modification to a mitigation bank conceptual approval or mitigation bank permit issued on or before the effective date of this act, which is applied for within 20 years of the effective date of this act, and which does not involve the addition of new land that was not previously included in the mitigation bank conceptual approval or mitigation bank permit, shall be subject to the rules adopted pursuant to s. 373.4135 which were in effect before the effective date of this act, unless the permittee elects to be subject to the rules governing mitigation banks adopted after that date.

(11) RULES. — The department and water management district may adopt rules to implement the provisions of s. 373.4135 and this section, which shall include, but not be limited to, provisions: (a) Requiring financial responsibility for the construction, operation, and long-term management of a mitigation bank; (b) For the perpetual protection and management of mitigation banks; and (c) Establishing a system and methodology for the valuation, assessment, and award of mitigation credits.

Legislative History

s. 7, ch. 96-371; s. 3, ch. 2000-133; s. 9, ch. 2003-265; s. 5, ch. 2012-174; s. 17, ch. 2022-204; s. 1, ch. 2025-191.