Florida Senate - 2023                                    SB 1702
       
       
        
       By Senator DiCeglie
       
       
       
       
       
       18-01253A-23                                          20231702__
    1                        A bill to be entitled                      
    2         An act relating to mitigation credits; amending s.
    3         373.4136, F.S.; authorizing the Department of
    4         Environmental Protection and water management
    5         districts to release mitigation credits to certain
    6         mitigation banks under specified conditions; requiring
    7         the department and water management districts to
    8         authorize the use of mitigation credits available
    9         within surrounding basins or specified regions;
   10         conforming provisions to changes made by the act;
   11         providing circumstances under which mitigation credits
   12         are deemed unavailable in a basin; requiring
   13         affidavits from mitigation banks before certain
   14         mitigation credits are released; authorizing certain
   15         projects to use mitigation banks regardless of whether
   16         the projects are located within the mitigation service
   17         area; requiring the department to begin rulemaking on
   18         a specified date; providing an effective date.
   19          
   20  Be It Enacted by the Legislature of the State of Florida:
   21  
   22         Section 1. Subsection (5) and paragraph (d) of subsection
   23  (6) of section 373.4136, Florida Statutes, are amended to read:
   24         373.4136 Establishment and operation of mitigation banks.—
   25         (5) SCHEDULE FOR CREDIT RELEASE.—After awarding mitigation
   26  credits to a mitigation bank, the department or the water
   27  management district shall set forth a schedule for the release
   28  of those credits in the mitigation bank permit. A mitigation
   29  credit that has been released may be sold or used to offset
   30  adverse impacts from an activity regulated under this part.
   31         (a) The department or the water management district shall
   32  allow a portion of the mitigation credits awarded to a
   33  mitigation bank to be released for sale or use before prior to
   34  meeting all of the performance criteria specified in the
   35  mitigation bank permit. The department or the water management
   36  district shall allow the release of all of a mitigation bank’s
   37  awarded mitigation credits only after the bank meets the
   38  mitigation success criteria specified in the permit. If
   39  mitigation credits are not available in sufficient quantities to
   40  be sold or used to offset imminent and otherwise allowable
   41  adverse impacts within a mitigation service area, the department
   42  or water management district may release credits to a mitigation
   43  bank before the bank meets the mitigation success criteria
   44  specified in the mitigation bank permit if the bank has been
   45  successfully constructed and there is a high degree of
   46  confidence that the required ecological performance standards
   47  will be met.
   48         (b) The number of credits and schedule for release shall be
   49  determined by the department or water management district based
   50  upon the performance criteria for the mitigation bank and the
   51  success criteria for each mitigation activity. The release
   52  schedule for a specific mitigation bank or phase thereof shall
   53  be related to the actions required to implement the bank, such
   54  as site protection, site preparation, earthwork, removal of
   55  wastes, planting, removal or control of nuisance and exotic
   56  species, installation of structures, and annual monitoring and
   57  management requirements for success. In determining the specific
   58  release schedule for a bank, the department or water management
   59  district shall consider, at a minimum, the following factors:
   60         1. Whether the mitigation consists solely of preservation
   61  or includes other types of mitigation.
   62         2. The length of time anticipated to be required before a
   63  determination of success can be achieved.
   64         3. The ecological value to be gained from each action
   65  required to implement the bank.
   66         4. The financial expenditure required for each action to
   67  implement the bank.
   68         (c)Notwithstanding the provisions of this subsection, no
   69  credit shall be released for freshwater wetland creation until
   70  the success criteria included in the mitigation bank permit are
   71  met.
   72         (c)(d) The withdrawal of mitigation credits from a
   73  mitigation bank shall be accomplished as a minor modification of
   74  the mitigation bank permit. A processing fee may shall not be
   75  required by the department or water management district for this
   76  minor modification.
   77         (d)If mitigation credits are not available in a basin, the
   78  department or water management district shall allow the use of
   79  mitigation credits available within surrounding basins or within
   80  the appropriate United States Geological Survey hydrological
   81  unit code in the appropriate buffer region.
   82         (e)Wetland mitigation credits are deemed unavailable in a
   83  basin if the party requesting the credits provides an affidavit
   84  to the department or water management district signed by the
   85  mitigation banks within the basin attesting that credits are not
   86  available. The affidavit must be signed by each mitigation bank
   87  within the 30 days preceding the date the request is submitted
   88  to the department or water management district. Mitigation banks
   89  without available wetland mitigation credits shall sign an
   90  affidavit at the request of the party seeking the credits. If a
   91  mitigation bank owner or agent is unable to release wetland
   92  mitigation credits within 30 days after a request is made, the
   93  mitigation bank is deemed to not have wetland mitigation credits
   94  available.
   95         (6) MITIGATION SERVICE AREA.—The department or water
   96  management district shall establish a mitigation service area
   97  for each mitigation bank permit. The department or water
   98  management district shall notify and consider comments received
   99  on the proposed mitigation service area from each local
  100  government within the proposed mitigation service area. Except
  101  as provided herein, mitigation credits may be withdrawn and used
  102  only to offset adverse impacts in the mitigation service area.
  103  The boundaries of the mitigation service area shall depend upon
  104  the geographic area where the mitigation bank could reasonably
  105  be expected to offset adverse impacts. Mitigation service areas
  106  may overlap, and mitigation service areas for two or more
  107  mitigation banks may be approved for a regional watershed.
  108         (d) If the requirements in s. 373.414(1)(b) and (8) are
  109  met, the following projects or activities regulated under this
  110  part shall be eligible to use a mitigation bank, regardless of
  111  whether they are located within the mitigation service area:
  112         1. Projects with adverse impacts partially located within
  113  the mitigation service area.
  114         2. Linear projects, such as roadways, transmission lines,
  115  distribution lines, pipelines, railways, or seaports listed in
  116  s. 311.09(1).
  117         3. Projects with total adverse impacts of less than 1 acre
  118  in size.
  119         4.Projects approved by the department or water management
  120  district on a case-by-case basis if sufficient quantities of
  121  mitigation credits are not available to be sold or used to
  122  offset imminent and otherwise allowable adverse impacts within a
  123  mitigation service area.
  124         Section 2. The Department of Environmental Protection shall
  125  begin rulemaking to implement this act on August 1, 2023.
  126         Section 3. This act shall take effect July 1, 2023.