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:
335 404.0561 Survey 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:
354 768.405 Documentation 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.