Emerging Law and Regulations Affecting Mitigation Banking

Wayne E. Flowers, Esq.

Presented at Ecological & Environmental Mitigation Banking Conference

November 9, 2012

Mitigation Bank Credits – the Preferred Mitigation Option

40 CFR §§230.91-230.98• Mitigation Should Be:

– Located in same watershed as impact– Located where loss function can be most successfully

replaced

Mitigation Bank Credits – the Preferred Mitigation Option, cont’d

40 CFR §290.93(b) – Priority of Options1. Mitigation Bank Credits2. In lieu fee programs3. Permittee – responsible mitigation under a watershed

approach4. Permittee – responsible mitigation through on-site and in-

kind mitigation5. Permittee – responsible mitigation through off-site and/or in-

kind mitigation

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

Caveats

• Bank must be in same watershed as impacts• Type for type

2012 Florida - USACOE Interagency Agreement

• Covers procedures where ERP and §404 permits overlap

• Joint application• Water quality certifications

2012 Florida – USACOE Interagency Agreement

• IRT Procedures for Mitigation Bank Permit Applications• Mitigation Site Protection

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

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

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.”

• 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

Is the Government Liable for Impugning the Integrity of a Mitigation Bank Consultant?

• Highview Engineering, Inc. v. U.S. Army Corps of Engineers

Our Cast of Characters

Dr. Hawkins Dr. Harris

Katie McCafferty

Dr. Hawkins Sues Corps

• Violation of 5th Amendment right to due process• Violation of 1st Amendment right of association• Interference with contractual relationship• Defamation

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

Court:

• Harris must demonstrate a systematic effort by procuring agency to reject all of bidder’s contract bids.

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

Questions?

For additional information, please contact Wayne Flowers at:Lewis, Longman & Walker, P.A.

245 Riverside Avenue, Suite 150Jacksonville, FL 32202Office: 904-353-6410

Facsimile: 904-353-7619wflowers@llw-law.com

A copy of this presentation may be found at our website:http://www.llw-law.com