DEP Confirms Local Governments Can Use Mitigation Bank Credits
On September 10, 2025, the Florida Department of Environmental Protection issued a memorandum clarifying a question that has come up among water management districts: whether mitigation bank credits can be used to offset wetland impacts regulated outside of the Environmental Resource Permit program, specifically under local pollution control programs. DEP’s position is clear. The use of mitigation bank credits for this purpose is allowable under Florida law.
The Statutory Basis
Section 373.4135(2), F.S., states that local governments cannot deny the use of a mitigation bank due to its location outside of that local government’s jurisdiction. Section 373.4136(6)(c), F.S., further requires that once a mitigation bank service area has been established, it must be accepted by all water management districts, local governments, and DEP.
Senate Bill 492, enacted July 1, 2025, amended portions of section 373.4136, but left this language unchanged. The memo notes that the Legislature chose to keep broad language referring to local governments in general terms rather than limiting credit use specifically to delegated local ERP programs.
Local Pollution Control Programs Are a Separate Legal Scheme
Section 403.182, F.S., grants counties and municipalities the authority to establish and administer local pollution control programs when approved by DEP. These programs operate separately from local delegated ERP programs authorized under section 373.441, F.S., and Chapter 62-344, F.A.C. According to the memo, the Legislature clearly intended for these local pollution control programs to be able to authorize mitigation bank credits as an acceptable form of mitigation for their own permitted impacts.
This is reinforced by section 373.414(18), F.S., which establishes the uniform mitigation assessment method as the sole means of determining mitigation needs and makes it binding on DEP, water management districts, local governments, and other governmental agencies.
No Existing Prohibition
DEP’s own rules support this position. Rule 62-342.100(1), F.A.C., and Rule 62-342.470(6), F.A.C., both describe mitigation bank credits as an allowable mitigation option without restricting their use to ERP-permitted impacts specifically. The memo states that DEP has authorized this use by local governments on numerous occasions, and that absent clear legislative restriction, neither DEP nor the water management districts can create a new prohibition.
What This Means for MBG Clients
This memo provides helpful clarity for landowners, consultants, and local governments working through compliance obligations that fall outside the ERP program. If your project involves wetland impacts regulated by a local pollution control program, mitigation bank credits remain a viable and DEP-supported compliance option. Contact Victoria Bruce to discuss credit availability for your specific project.
Source:
Truitt, John J. Memorandum: “Use of Mitigation Bank Credits by Local Governments.” Florida Department of Environmental Protection, September 10, 2025.
