62-342.650. Land Use Restrictions on Mitigation Banks

(1) Before Mitigation Credits may be used from a Mitigation Bank or any phase of a Mitigation Bank, the banker shall either:

(a) Cause a fee interest to be conveyed to the Board of Trustees of the Internal Improvement Trust Fund (“Board of Trustees”); or

(b) Cause a conservation easement to be conveyed to both the Department and the District. The grantor of a conservation easement may convey a conservation easement to additional grantees, but such conveyance shall be subordinate to the conservation easement granted to the Department and the District. Mitigation Banks on federal, state, or water management district owned land shall be encumbered in perpetuity by conservation easements, or other mechanisms shall be employed to ensure preservation according to the Mitigation Bank Permit.

(2) If the Mitigation Bank is located within an area identified in an Agency acquisition plan, and the Agency determines that the ecological value of the bank can be increased by incorporating the bank into the Agency’s land management programs, the Agency may award additional Mitigation Credits if the fee interest in the bank is conveyed to the Agency as opposed to a conservation easement.

(3) All conservation easements shall be granted in perpetuity without encumbrances, unless such encumbrances do not adversely affect the ecological viability of the Mitigation Bank. All conservation easements shall be of a form and content sufficient to ensure preservation of the Mitigation Bank according to the permit, and shall, at a minimum, meet requirements and restrictions of Section 704.06, F.S., except as provided in subsection 62-342.650(9), F.A.C. The conservation easement shall also provide that the banker shall have access to the property and the authority to perform all acts necessary to ensure compliance with the Mitigation Bank Permit (unless the banker is the fee owner of the property), and that the Agency shall have access and the authority to perform these acts if the banker fails to do so.

(4) All real property conveyances of the fee interest shall be in fee simple and by statutory warranty deed, without encumbrances that adversely affect the integrity of the bank and are acceptable to the Board of Trustees. The Board of Trustees will accept a quit claim deed to aid in clearing minor title defects or otherwise resolve a boundary question in the Mitigation Bank.

(5) As part of providing reasonable assurance that the Mitigation Bank site will be preserved in perpetuity, the grantor of the property or conservation easement shall provide the following unless the Agency determines during the permit review process such items are not necessary to ensure preservation of the Mitigation Bank according to the permit:

(a) A boundary survey of the real property interest being conveyed. The survey must be certified, by a land surveyor and mapper, registered in the State of Florida, to meet the requirements of the Agency and the minimum technical standards set forth by the Florida Board of Professional Surveyors and Mappers in Rules 5J-17.050 through 5J-17.052, F.A.C., under Section 472.027, F.S.

(b) A certified appraisal or other documentation demonstrating the market value of the property or interest to be conveyed to determine the appropriate amount of title insurance.

(c) A marketable title commitment issued to the Agency as beneficiary in an amount at least equal to the fair market value, as established in paragraph 62-342.650(5)(b), F.A.C., of the interest being conveyed. An owner’s title insurance policy (ALTA Form B) naming the Agency as beneficiary shall be issued to the Agency within the time frames specified by the permit. The coverage, form and exceptions of the title insurance policy shall ensure that the Mitigation Bank will be preserved according to the Mitigation Bank Permit.

(d) A Phase I environmental audit identifying any environmental problems which may affect the liability of the Agency or Board of Trustees and any additional audits as are necessary to ensure that the Agency or the Board of Trustees is not subject to liability under federal or state laws relating to the treatment or disposal of hazardous substances or ownership of land upon which hazardous substances are located, or to ensure that there are not hazardous substances present on the property which would adversely affect construction, implementation, and perpetual management of the Mitigation Bank.

(6) The Agency shall require additional documentation or actions from the grantor of the conservation easement or fee interest if such additional documentation or actions are necessary to ensure that the Mitigation Bank will be preserved according to the Mitigation Bank Permit.

(7) The banker shall pay the documentary revenue stamp tax and all other taxes or costs associated with the conveyance, including the cost of recording the deed or conservation easement and any other recordable instruments required by the Agency or Board of Trustees, unless prohibited or exempt by law, as a condition of the receipt of the conveyance.

(8) All real estate taxes and assessments which are or which may become a lien against the property shall be satisfied of record by the banker before recording the conservation easement. If necessary, the banker shall, in accordance with Section 196.295, F.S., place funds in escrow with the county tax collector. The mitigation banker shall also provide the Agency with annual documentation demonstrating that such taxes and assessments have been paid.

(9) As a condition of receipt of the conveyance the banker shall remove all abandoned personal property, solid waste, or hazardous substances from the property that: reduces the proposed ecological value of the property; will adversely affect the construction, implementation or management of the bank; will adversely affect the construction, alteration, operation, maintenance, abandonment or removal of any surface water management system to be constructed in the bank; or poses a risk of liability to the Board of Trustees or the Agency.

(10) The banker shall record the conservation easement or property deed required in the Mitigation Bank Permit. The banker shall submit to the Agency the original recorded conservation easement or property deed as soon as such document is returned from the public records office.

Rulemaking Authority 373.4131, 373.4136(11) FS. Law Implemented 373.4131, 373.4135, 373.4136 FS. History–New 2-2-94, Formerly 17-342.650, Amended 12-12-94, 5-21-01, 2-19-15.