Rogers Towers: Florida’s Pending Wetland Mitigation Banking Legislation


The Florida Legislature is considering two bills during the 2010 session that would make mitigation bank credits the preferred alternative for offsetting wetland impacts from development projects and would establish a formal assessment determination process for the creation of wetland mitigation banks.

In 2008, the U.S. Army Corps of Engineers and U.S. Environmental Protection Agency adopted rules that established a preference for mitigation bank credits over other forms of wetland mitigation (i.e., in lieu fee, off-site or on-site mitigation). The federal agencies formally adopted the preference for mitigation banking due to the rigorous review by both state and federal agencies ensuring that proposed mitigation banks include i) valid scientifically suitable mitigation plans; ii) mitigation service areas delineating the territory in which each bank can be used; iii) adequate conservation easements or other real property mechanisms for the perpetual preservation of bank lands; and iv) financial mechanisms guaranteeing successful implementation and perpetual management. In summary, the federal agencies determined that mitigation banks are less risky than other forms of wetland mitigation.

Presently, Florida regulations establish a preference for on-site mitigation to offset wetland impacts. However, the Florida Senate is considering Senate Bill 2238, which if approved, would amend Section 373.4135, Florida Statutes, to direct the Florida Department of Environmental Protection (the “DEP”) and the state’s five water management districts to mirror the federal preference for mitigation bank credits. In addition, the Florida House is considering a similar measure in House Bill 1175.

The bills would also amend Section 373.414, Florida Statutes, to require the DEP to adopt rules that provide a process for obtaining a formal assessment determination of land for potential mitigation bank establishment, pursuant to the uniform mitigation assessment method (“UMAM”). Such formal assessments would i) be binding for up to five (5) years; ii) allow the DEP or district governing board, as applicable, to revoke a formal assessment determination if it finds that the petitioner submitted inaccurate information; and iii) constitute final agency action. A mitigation bank assessment can be sought alone or in combination with a formal determination of the extent of wetlands or other surface waters pursuant to Section 373.421, Florida Statutes.

If enacted, the bills would take effect on July 1, 2010. If you have any questions about this pending legislation, please contact Ellen Avery-Smith.


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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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