CS for CS for SB 492                             First Engrossed
       
       
       
       
       
       
       
       
       2025492e1
       
    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; amending s. 376.308, F.S.; providing
   36         conditions for a cause of action against certain
   37         former phosphate mine sites; creating s. 378.213,
   38         F.S.; authorizing landowners to record certain notice
   39         of former phosphate mines; specifying requirements for
   40         such notice; defining the term “former phosphate
   41         mine”; creating s. 404.0561, F.S.; requiring the
   42         Department of Health to conduct gamma radiation
   43         surveys of former phosphate land parcels upon
   44         petition; creating s. 768.405, F.S.; requiring that
   45         specified documentation of radiation levels be
   46         submitted in certain civil actions related to
   47         phosphate mining; providing an effective date.
   48          
   49  Be It Enacted by the Legislature of the State of Florida:
   50  
   51         Section 1. Subsections (5) and (6) of section 373.4136,
   52  Florida Statutes, are amended to read:
   53         373.4136 Establishment and operation of mitigation banks.—
   54         (5) SCHEDULE FOR CREDIT RELEASE.—After July 1, 2025, when
   55  issuing awarding mitigation credits to a mitigation bank permit,
   56  the department or the water management district shall adhere to
   57  the credit release schedule set forth in paragraph (a) a
   58  schedule for the release of those credits awarded by in the
   59  mitigation bank permit. A mitigation credit that has been
   60  released may be sold or used to offset adverse impacts from an
   61  activity regulated under this part.
   62         (a)1. Thirty percent of awarded credits shall be released
   63  upon the recordation of the conservation easement and
   64  establishment of financial assurances required by the mitigation
   65  bank permit. If a preservation-only assessment area is used, 100
   66  percent of awarded credits shall be released for the recordation
   67  of the conservation easement and establishment of financial
   68  assurances required by the mitigation bank permit.
   69         2. Thirty percent of awarded credits shall be released
   70  following completion of initial construction activities as
   71  established by the mitigation bank permit.
   72         3. Twenty percent of awarded credits shall be released in
   73  increments as monitoring indicates interim performance criteria
   74  established by the mitigation bank permit are being met.
   75         4. Twenty percent of awarded credits shall be released upon
   76  meeting final success criteria established by the mitigation
   77  bank permit.
   78         (b)The mitigation bank applicant may propose an
   79  alternative credit release schedule and the department or water
   80  management district shall consider the proposed alternative
   81  credit release schedule.
   82         (c)Upon request by a mitigation bank permittee for
   83  modification of the credit release schedule of a permitted
   84  mitigation bank, the department or relevant water management
   85  district shall modify the credit release schedule to conform it
   86  to paragraph (a) if such permitted mitigation bank has not yet
   87  had mitigation credits released for the completion of
   88  construction activities. The department or water management
   89  district may not alter, change, or modify any other provision of
   90  the mitigation bank permit unrelated to the credit release
   91  schedule The department or the water management district shall
   92  allow a portion of the mitigation credits awarded to a
   93  mitigation bank to be released for sale or use prior to meeting
   94  all of the performance criteria specified in the mitigation bank
   95  permit. The department or the water management district shall
   96  allow release of all of a mitigation bank’s awarded mitigation
   97  credits only after the bank meets the mitigation success
   98  criteria specified in the permit.
   99         (b)The number of credits and schedule for release shall be
  100  determined by the department or water management district based
  101  upon the performance criteria for the mitigation bank and the
  102  success criteria for each mitigation activity. The release
  103  schedule for a specific mitigation bank or phase thereof shall
  104  be related to the actions required to implement the bank, such
  105  as site protection, site preparation, earthwork, removal of
  106  wastes, planting, removal or control of nuisance and exotic
  107  species, installation of structures, and annual monitoring and
  108  management requirements for success. In determining the specific
  109  release schedule for a bank, the department or water management
  110  district shall consider, at a minimum, the following factors:
  111         1. Whether the mitigation consists solely of preservation
  112  or includes other types of mitigation.
  113         2. The length of time anticipated to be required before a
  114  determination of success can be achieved.
  115         3. The ecological value to be gained from each action
  116  required to implement the bank.
  117         4. The financial expenditure required for each action to
  118  implement the bank.
  119         (d)(c) Notwithstanding the provisions of this subsection, a
  120  mitigation no credit may not shall be released for freshwater
  121  wetland creation until the success criteria established included
  122  in the mitigation bank permit for initial construction
  123  activities are met.
  124         (e)(d) The withdrawal of mitigation credits from a
  125  mitigation bank shall be accomplished as a minor modification of
  126  the mitigation bank permit. A processing fee is not shall not be
  127  required by the department or water management district for this
  128  minor modification.
  129         (6) MITIGATION SERVICE AREA.—The department or water
  130  management district shall establish a mitigation service area
  131  for each mitigation bank permit. The department or water
  132  management district shall notify and consider comments received
  133  on the proposed mitigation service area from each local
  134  government within the proposed mitigation service area. Except
  135  as provided in this section herein, mitigation credits may be
  136  withdrawn and used only to offset adverse impacts in the
  137  mitigation service area. The boundaries of the mitigation
  138  service area shall depend upon the geographic area where the
  139  mitigation bank could reasonably be expected to offset adverse
  140  impacts. Mitigation service areas may overlap, and mitigation
  141  service areas for two or more mitigation banks may be approved
  142  for a regional watershed.
  143         (a) In determining the boundaries of the mitigation service
  144  area, the department or the water management district shall
  145  consider the characteristics, size, and location of the
  146  mitigation bank and, at a minimum, the extent to which the
  147  mitigation bank:
  148         1. Contributes to a regional integrated ecological network;
  149         2. Will significantly enhance the water quality or
  150  restoration of an offsite receiving water body that is
  151  designated as an Outstanding Florida Water, a Wild and Scenic
  152  River, an aquatic preserve, a water body designated in a plan
  153  approved pursuant to the Surface Water Improvement and
  154  Management Act, or a nationally designated estuarine preserve;
  155         3. Will provide for the long-term viability of endangered
  156  or threatened species or species of special concern;
  157         4. Is consistent with the objectives of a regional
  158  management plan adopted or endorsed by the department or water
  159  management districts; and
  160         5. Can reasonably be expected to offset specific types of
  161  wetland impacts within a specific geographic area. A mitigation
  162  bank need not be able to offset all expected impacts within its
  163  service area.
  164         (b) The department and water management districts shall use
  165  regional watersheds to guide the establishment of mitigation
  166  service areas. Drainage basins established pursuant to s.
  167  373.414(8) may be used as regional watersheds when they are
  168  established based on the hydrological or ecological
  169  characteristics of the basin. A mitigation service area may
  170  extend beyond the regional watershed in which the bank is
  171  located into all or part of other regional watersheds when the
  172  mitigation bank has the ability to offset adverse impacts
  173  outside that regional watershed. Similarly, a mitigation service
  174  area may be smaller than the regional watershed in which the
  175  mitigation bank is located when adverse impacts throughout the
  176  regional watershed cannot reasonably be expected to be offset by
  177  the mitigation bank because of local ecological or hydrological
  178  conditions.
  179         (c) Once a mitigation bank service area has been
  180  established by the department or a water management district for
  181  a mitigation bank, such mitigation bank shall be deemed to
  182  implement a plan that provides regional ecological value; such
  183  service area shall be accepted by all water management
  184  districts, local governments, and the department; and the use of
  185  credits from such mitigation bank to offset impacts within that
  186  bank’s service area shall be considered to have met the
  187  cumulative impact requirements of s. 373.414(8)(a).
  188         (d) If the provisions of requirements in s. 373.414(1)(b)
  189  and (8) are met and an insufficient number or type of credits
  190  from banks whose permitted service area overlays in whole or in
  191  part the regional watershed in which the impacts occur, the
  192  permit applicant is entitled to a one-time use of credits
  193  released from a mitigation bank outside the mitigation bank
  194  service area to offset impacts pursuant to s. 373.414(1)(b), as
  195  established by the procedure in paragraph (f). The department or
  196  water management district must have determined that the
  197  mitigation service area lacked the appropriate credit type.
  198  Priority must be given to mitigation banks whose permitted
  199  service area fully includes the impacted site. If the number of
  200  released credits within a mitigation service area only partially
  201  offsets the impacts associated with a proposed project in the
  202  mitigation service area, the permit applicant may only use out
  203  of-service-area credits to account for the difference between
  204  the released credits available in the mitigation bank service
  205  area and the credits required to offset the impacts associated
  206  with the proposed project. In implementing this subsection, the
  207  department and water management districts shall apply a
  208  proximity factor to determine adequate compensatory mitigation
  209  as follows:
  210         1. A 1.0 multiplier shall be applied for use of in-kind
  211  credits within the service area.
  212         2. A 1.0 multiplier shall be applied for use of in-kind and
  213  out-of-service-area credits when the service area overlays part
  214  of the same regional watershed as the proposed impacts only
  215  after credit-deficiency has been established by the procedure
  216  set forth in paragraph (f).
  217         3. A 1.2 multiplier shall be applied for use of in-kind and
  218  out-of-service-area credits located within a regional watershed
  219  immediately adjacent to the regional watershed overlain by a
  220  bank service area in which proposed impacts are located only
  221  after credit-deficiency has been established by the procedure
  222  set forth in paragraph (f).
  223         4. When in-kind credits are not available to offset impacts
  224  in the regional watershed immediately adjacent to the regional
  225  watershed overlain by a mitigation bank service area in which
  226  the proposed impacts are located, an additional 0.25 multiplier
  227  shall be applied for each additional regional watershed boundary
  228  crossed only after credit-deficiency has been established by the
  229  procedure set forth in paragraph (f).
  230         5. An additional 0.50 multiplier shall be applied after any
  231  multipliers required in subparagraphs 1.-4., if the mitigation
  232  used to offset impacts entails out-of-kind replacement.
  233         (e)Use of the multipliers in subparagraphs (d)2., 3., 4.,
  234  and 5. meets the requirements of s. 373.414(8)(a) for addressing
  235  cumulative impacts.
  236         (f)Once the amount of mitigation required to offset
  237  impacts has been determined, and the department or water
  238  management district determines that out-of-service-area or out
  239  of-kind mitigation is necessary, the department or water
  240  management district shall contact all mitigation banks with a
  241  mitigation service area encompassing the location of the
  242  proposed impacts within 7 business days after receipt of the
  243  request from the permit applicant and request an accounting of
  244  available credits, including out-of-kind credits. The accounting
  245  may not include credits reserved for other permit applicants.
  246  The mitigation banks contacted by the department or water
  247  management district shall be allowed 15 business days after
  248  receipt of the request by the department or water management
  249  district to reply to such request. If one or more mitigation
  250  banks replying to the request notifies the department or the
  251  water management district that out-of-kind credits are available
  252  to offset the proposed impact and the department or a water
  253  management district determines that such out-of-kind credits are
  254  appropriate to offset all or part of the proposed impact, the
  255  department or the water management district shall notify the
  256  permit applicant that sufficient credits are available within
  257  that bank’s service area to offset the proposed impacts and the
  258  use of credits from another mitigation bank outside of that
  259  other mitigation bank’s service area may not occur until use of
  260  all of the out-of-kind credits occurs as allowed by the
  261  department or water management district. If a mitigation bank
  262  does not reply within the 15 business day timeframe, it is
  263  presumed credits from that bank are not available. Upon receipt
  264  of the accounting from the mitigation banks, the department or
  265  water management district shall determine if sufficient credits
  266  are available to offset impacts associated with the proposed
  267  project and notify the permit applicant of such determination
  268  within 15 business days. The permit applicant, and no other
  269  entity, may rely on the determination from the department or
  270  water management district for a period of 6 months beginning on
  271  the date the department or water management district notifies
  272  the permit applicant of such determination, but only for
  273  purposes relating to the pending application producing such
  274  determination and not any extensions, nor renewals, nor
  275  modifications of any permit issued pursuant to that pending
  276  application, nor for any other permit application.
  277         (g) Beginning July 1, 2026, and each July 1 thereafter,
  278  each mitigation bank in this state shall submit to the
  279  department or water management district an accounting of the
  280  number and type of credits the mitigation bank has available for
  281  sale. The accounting may not include names of parties for which
  282  credits have been reserved or the contract price paid for the
  283  credits. The department or water management district shall
  284  compile the information to provide an assessment of this state’s
  285  mitigation banking system and submit a report to the President
  286  of the Senate and the Speaker of the House of Representatives on
  287  October 1, 2026, and each October 1 thereafter, the following
  288  projects or activities regulated under this part shall be
  289  eligible to use a mitigation bank, regardless of whether they
  290  are located within the mitigation service area:
  291         1. Projects with adverse impacts partially located within
  292  the mitigation service area.
  293         2. Linear projects, such as roadways, transmission lines,
  294  distribution lines, pipelines, railways, or seaports listed in
  295  s. 311.09(1).
  296         3. Projects with total adverse impacts of less than 1 acre
  297  in size.
  298         Section 2. Paragraph (e) is added to subsection (2) of
  299  section 376.308, Florida Statutes, to read:
  300         376.308 Liabilities and defenses of facilities.—
  301         (2) In addition to the defense described in paragraph
  302  (1)(c), the only other defenses of a person specified in
  303  subsection (1) are to plead and prove that the occurrence was
  304  solely the result of any of the following or any combination of
  305  the following:
  306         (e)The condition giving rise to the cause of action is a
  307  natural geological substance of a former phosphate mine, as
  308  defined in s. 378.213, for which:
  309         1. A notice has been recorded in accordance with s.
  310  378.213(1); and
  311         2. The Department of Health has conducted a survey under s.
  312  404.0561(1).
  313         Section 3. Section 378.213, Florida Statutes, is created to
  314  read:
  315         378.213 Notice of former phosphate mine site.—
  316         (1)A landowner may record a notice in the official records
  317  of the county in which the land is located which identifies the
  318  landowner’s property as a former phosphate mine. The recorded
  319  notice must be in substantially the following form:
  320  
  321                               NOTICE                              
  322         This property is a former phosphate mine as defined in
  323         s. 378.213(2), Florida Statutes.
  324  
  325  Such recording serves as notice that the land is a former
  326  phosphate mine.
  327         (2) As used in this section, the term “former phosphate
  328  mine” means an area of land upon which phosphate mining has been
  329  conducted and which may have been subject to a radiation survey
  330  in accordance with s. 404.0561 and state reclamation
  331  requirements of ss. 378.201-378.212, but does not include a
  332  phosphogypsum stack as defined in s. 403.4154(1)(d).
  333         Section 4. Section 404.0561, Florida Statutes, is created
  334  to read:
  335         404.0561Survey of former phosphate mining lands.—
  336         (1)Upon petition by a current landowner, the department
  337  shall conduct a gamma radiation survey of a former phosphate
  338  land parcel within 120 days after receipt of the petition to
  339  determine the radioactivity levels. The survey must document
  340  gamma radiation exposure measurements and the locations of the
  341  measurements.
  342         (2)The department shall provide a copy of the preliminary
  343  survey results to the petitioner within 30 days after completion
  344  of the survey. Within 60 days after receipt of the survey, the
  345  petitioner may request an additional survey based upon any
  346  reasonable belief that the survey was flawed or not
  347  representative of conditions on the site. The department shall
  348  conduct one additional survey within 90 days after receipt of
  349  the petitioner’s request. The additional survey must meet the
  350  requirements of this section and is deemed final within 90 days
  351  after completion.
  352         Section 5. Section 768.405, Florida Statutes, is created to
  353  read:
  354         768.405Documentation of radiation levels.—In any civil
  355  action based on strict liability under s. 376.313(3), negligence
  356  or similar conduct related to an alleged discharge of hazardous
  357  substances or condition of pollution related to phosphate
  358  mining, including the presence of mining overburden, solid waste
  359  from the extraction, or beneficiation of phosphate rock from a
  360  phosphate mine; or any other similar claim related to the mining
  361  of phosphatic rock or reclamation of a mined area, the plaintiff
  362  must include a radiation survey of the property with the
  363  complaint. The survey must be prepared by a person certified as
  364  either a health physicist by the American Board of Health
  365  Physics or as a radiation protection technologist by the
  366  National Registry of Radiation Protection Technologists. The
  367  survey must be representative and document the measured gamma
  368  radiation on the property, including background values
  369  determined in accordance with the Environmental Protection
  370  Agency’s Multi-agency Radiation Survey and Site Investigation
  371  Manual; the locations of the measurements; the testing
  372  equipment; the testing methodology used, including the equipment
  373  calibration date and protocol; and the name of the person
  374  performing the survey and describe the person’s relevant
  375  training, education, and experience. The survey shall be
  376  verified under penalty of perjury as provided in s. 92.525.
  377         Section 6. This act shall take effect July 1, 2025.