1. Emerging Law and Regulations Affecting Mitigation Banking Wayne E
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, cont’d
40 CFR §290.93(b) – Priority of Options
Mitigation Bank Credits
In lieu fee programs
Permittee – responsible mitigation under a watershed approach
Permittee – responsible mitigation through on-site and in-kind mitigation
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. Mitigation Site Protection
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
Heart’s Bluff Ranch, Inc. v. United States
Heart’s 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
Heart’s Bluff sues United States for regulatory taking

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

11. Landowner had no capacity to develop bank absent Corps approval
Heart’s Bluff was not disturbed in the use of its property
Corps’ action didn’t diminish rights Heart’s 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. Hawkins
Dr. Harris
Katie McCafferty

16. Dr. Hawkins Sues Corps Violation of 5th Amendment right to due process
Violation of 1st 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 bidder’s 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

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: