Mitigation Banking Legislative Update – March 2023

Mitigation Banking Legislative Update – March 2023

HB 1167 has been filed; and a Senate companion to HB 1167 has been filed – SB 1702.

This bill will allow FDEP or a water management district to release state credits from a mitigation bank before the banks mets the mitigation success criteria specified in the bank’s permit when


(a) mitigation credits are not available in sufficient quantities to be sold or used to offset imminent and otherwise allowable adverse impacts within a mitigation service area;

(b) the bank has been successfully constructed; and

(c) there is a high degree of confidence that the required ecological performance standards will be met.


  1. Eliminate the current statutory prohibition on not releasing credits for freshwater wetland creation until the success criteria in the bank permit are met.
  2. Authorize the DEP and water management districts to allow the use of available credits within surrounding basins or within the appropriate US Geological Survey hydrological unit code in the appropriate buffer region if mitigation credits are not available in the basin where impacts are occurring.
  3. Provide that wetland mitigation credits are deemed unavailable in a basin if the party requesting the credit provides an affidavit to DEP or the water management district signed by the mitigation banks within the basin attesting that credits are not available.  The bill would mandate that such affidavit must be signed by each mitigation bank within the 30 days preceding the date the request is submitted to DEP or a water management district.  The bill would further require mitigation banks without available credits to sign an affidavit at the request of the party seeking the credits.  If a mitigation bank owner is unable to release wetland mitigation credits within 30 days after a request is made, the bill would deem that bank to not have wetland mitigation credits available.
  4. Allow the use of credits on a case-by-case basis outside of a mitigation service area if sufficient quantities of mitigation credits are not available to be sold or used to offset imminent and otherwise allowable adverse impacts within a service area.
  5. Mandate DEP adopt rules to implement the foregoing provisions starting on August 1, 2023.

Update to House Bill 1167: 3/30/23

One of the House committees that would have to consider this legislation, the House Water Quality, Supply & Treatment Committee has announced that they have stopped meeting for the session. They didn’t consider HB 1167. Also SB 1702 has not been heard by any committee in the Senate.

So, it appears that this legislation is dead for this session.