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

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 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

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 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