Wetlands & Mitigation Banking

Wetlands Regulation

Florida wetlands are regulated at the federal, state, and increasingly at the local level.  As such, those impacting wetlands must address a complex web of agencies each of which are responsible for regulating and enforcing various statutory acts, administrative rules, guidance and policies designed to protect wetlands.  For example, at the federal level, the U.S. Army Corps of Engineers regulates discharge components of the Clean Water Act and the Rivers and Harbors Act, and this leads to the review of water quality, wildlife habitat, and project alternatives.  These same wetland impact activities may also be governed by the Environmental Resource Permit (ERP) program administered by the Florida Department of Environmental Protection or one of the five water management districts. Some local governments in Florida also operate wetland regulatory programs independent of the state and federal programs and the local governments’ zoning regulations. These local wetland regulatory programs tend to be similar to the state and federal programs in their review and requirements, but can take a local rather than regional view.
Hopping Green & Sams has experience handling wetland regulation and navigating the difficult and complex layers involved in obtaining permits, defending enforcement actions, and shaping wetland policy.

Mitigation Banking

The need for wetland mitigation in Florida has spawned a growing industry – wetland mitigation banking – focused on restoring, enhancing, and preserving wetlands and natural areas on large tracts of land to provide a mitigation option before the impacts occur. A typical mitigation bank involves the voluntary preservation of a large land tract by subjecting that land to a conservation easement or fee simple donation, and then restoring, enhancing or creating wetlands, surface waters, or uplands contained within that tract. These efforts are assessed for the ecological value generated and are assigned mitigation “credits.” These mitigation credits can then be sold to third parties and “debited” to offset unavoidable wetland impacts in other locations.
Hopping Green & Sams has been working in the area of mitigation banking since its inception 20 years ago and our lawyers have helped establish many mitigation banks and worked to shape governing laws, regulations and policies related to this field.