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 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 inkind mitigation
5. Permittee – responsible mitigation through off-site and/or inkind mitigation
Reasons for Preference
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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
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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
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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 150
Jacksonville, FL 32202
Office: 904-353-6410
Facsimile: 904-353-7619
wflowers@llw-law.com
A copy of this presentation may be found at our website:
http://www.llw-law.com