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Emerging Law and Regulations Affecting Mitigation Banking Wayne E. Flowers, Esq. Presented at Ecological & Environmental Mitigation Banking Conference.

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Presentation on theme: "Emerging Law and Regulations Affecting Mitigation Banking Wayne E. Flowers, Esq. Presented at Ecological & Environmental Mitigation Banking Conference."— Presentation transcript:

1 Emerging Law and Regulations Affecting Mitigation Banking Wayne E. Flowers, Esq. Presented at Ecological & Environmental Mitigation Banking Conference November 9, 2012

2 Mitigation Bank Credits – the Preferred Mitigation Option 40 CFR §§ Mitigation Should Be: – Located in same watershed as impact – Located where loss function can be most successfully replaced

3 Mitigation Bank Credits – the Preferred Mitigation Option, contd 40 CFR §290.93(b) – Priority of Options 1.Mitigation Bank Credits 2.In lieu fee programs 3.Permittee – responsible mitigation under a watershed approach 4.Permittee – responsible mitigation through on-site and in- kind mitigation 5.Permittee – responsible mitigation through off-site and/or in- kind mitigation

4 Reasons for Preference Approved plan Real estate and financial assurances Mitigation in place and successful before impacts occur No time lag; no temporal loss Less uncertainty

5 Caveats Bank must be in same watershed as impacts Type for type

6 2012 Florida - USACOE Interagency Agreement Covers procedures where ERP and §404 permits overlap Joint application Water quality certifications

7 2012 Florida – USACOE Interagency Agreement IRT Procedures for Mitigation Bank Permit Applications Mitigation Site Protection

8 Allows grant to FDEP/WMD Corps given authority to enforce, inspect, etc. 60 day notice of any action to amend or release Notice to Corps of any violations

9 Denial of Mitigation Bank Permit as Regulatory Taking Hearts Bluff Ranch, Inc. v. United States Hearts Bluff buys 4,000 acres after being assured by Corps land was suitable for permitting as mitigation bank Corps ultimately denies mitigation bank permit application Hearts Bluff sues United States for regulatory taking

10 Did Government Take Hearts Bluffs Property When it Denied Mitigation Bank Permit Application? Court said no Hearts Bluff did not have property interest subject to 5 th Amendment because mitigation banking instrument is not an inherent stick in a land owners bundle.

11 Landowner had no capacity to develop bank absent Corps approval Hearts Bluff was not disturbed in the use of its property Corps action didnt diminish rights Hearts Bluff had the day it purchased the property

12 Is the Government Liable for Impugning the Integrity of a Mitigation Bank Consultant? Highview Engineering, Inc. v. U.S. Army Corps of Engineers

13 Our Cast of Characters Dr. HawkinsDr. Harris Katie McCafferty

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16 Dr. Hawkins Sues Corps Violation of 5 th Amendment right to due process Violation of 1 st Amendment right of association Interference with contractual relationship Defamation

17 Court dismissed all claims except #1, which was characterized by Court as action for constructive debarrment from doing business with Corps.

18 Court: Harris must demonstrate a systematic effort by procuring agency to reject all of bidders contract bids.

19 Court Rules - Nothing stated to indicate Corps would not grant Hawkins future contracts Harris admitted no direct threat of debarrment occurred Preclusion for a single contract is not proof of debarrment

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21 Questions? For additional information, please contact Wayne Flowers at: Lewis, Longman & Walker, P.A. 245 Riverside Avenue, Suite 150 Jacksonville, FL Office: Facsimile: A copy of this presentation may be found at our website:


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