Mitigation Bank Credits – the Preferred Mitigation Option

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

2. 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

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 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