Practice Area

The need for wetland mitigation in Florida has spawned a new industry - wetland mitigation banking - focused on restoring, enhancing, and preserving wetlands and natural areas on large tracts of land to provide a mitigation option for others. 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 and "debited" to offset unavoidable wetland impacts in other locations.

Mitigation banks are regulated at both the federal and state levels. Federal approval requires securing a section 404/section 10 permit from the Army Corps of Engineers and a Mitigation Banking Instrument signed by the Corps, EPA, and the U.S. Fish and Wildlife Service (and occasionally by the National Marine Fisheries Service and the National Resource Conservation Service). State approval requires obtaining an ERP/mitigation bank permit from either a water management district or DEP. Obtaining both federal and state approvals can be complex especially on the issues of credit assessment and determining the banks’ mitigation Hopping Green & Sams lawyers have been involved in wetland regulation in Florida since the inception of the modern state program.

Frank Matthews has been practicing in this field since 1981. Mr. Matthews has been involved in the development of Florida legislative acts affecting wetland regulation such as the Warren S. Henderson Wetland Protection Act of 1984; the Florida Environmental Reorganization Act of 1993; legislation ratifying the State Wetland Delineation Method in 1994; and mitigation bank legislation in 1993, 1996, and 2001. Mr. Matthews has also been involved in the development of the administrative rules affecting wetland regulation in Florida such as the rules governing the Delineation of the Landward Extent of Wetlands and Surface Waters adopted in 1993; Mitigation Banking rules adopted in 1994; Environmental Resource Permitting rules adopted in 1995; and the Uniform Wetland Mitigation Assessment Method adopted in 2003.

In addition to his legislative and policy-making experience, Mr. Matthews has represented clients in securing thousands of wetland-related permits from federal, state and local agencies for projects located all over Florida. These projects have involved housing and commercial development, agricultural lands, electric power generation and transmission facilities, road projects, natural gas and oil transmission facilities, and marinas and other boat docking facilities. Mr. Matthews has also represented clients in litigation involving third-party challenges to these permits at both the federal and state levels.

Mr. Olsen has been practicing exclusively in this area since 1990. From 1990 until 1999, Mr. Olsen was an attorney with the St. Johns River Water Management District where he served on the interagency teams that developed the statutes and rules governing the Delineation of the Landward Extent of Wetland and Surface Waters; Environmental Resource Permitting; and mitigation banking. Since joining the firm in 1999, Mr. Olsen has continued to be involved in legislation and rule making in this area such as the mitigation banking legislation enacted in 2001, and the Uniform Wetland Mitigation Assessment Method rules adopted in 2003.

Like Mr. Matthews, Mr. Olsen focuses a substantial portion of his practice on obtaining wetland-related permits from federal, state and local agencies for all types of projects located all over the state. Mr. Olsen has had a particular focus on permits and policy development affecting mitigation banks, and has represented multiple clients in obtaining mitigation bank permits and mitigation banking instruments for many mitigation banks in Florida. Mr. Olsen has also represented clients in litigation challenging the issuance of mitigation bank permits and other wetland-related permits.

Over the last 20 years, Richard Brightman has represented dozens of clients seeking authorization from state and federal agencies for projects affecting wetlands and surface waters. Mr. Brightman's experience includes numerous projects ranging from the siting and licensing of major energy facilities (such as power plants, transmission lines, pipelines and oil & gas exploration and production facilities) to residential and commercial developments, as well as major port facilities, ship yards and marinas. Mr. Brightman is also a recognized authority in Florida's Coastal Zone Management Program, and coastal consistency determinations.

Angela Morrison also practices in this area. Ms. Morrison has focused her practice in assisting clients in obtaining section 404 permits and ERPs for controversial projects. Ms. Morrison has also worked extensively on the development of Corps Regional General Permits for Florida that would streamline the wetland permitting process by avoiding the more time-consuming individual Corps permits for categories of projects impacting relatively small wetland areas.

Susan Stephens has extensive experience in wetlands regulation in Florida. She has represented various clients before the Florida Department of Environmental Protection in negotiated rulemaking efforts to develop a uniform mitigation assessment methodology for wetlands and in rulemaking addressing reclamation and wetland restoration standards for mined lands. She has assisted multiple clients in obtaining environmental resource and wetland resource permits and permit transfers from state and federal agencies authorizing activities in wetlands, with projects including industrial wastewater plant modification, phosphate mining, boat fueling dock expansion, development, mitigation banking, and hotel resort development. Over the past five years, Ms. Stephens has been heavily involved in administrative litigation involving third-party challenges to multiple wetland-related permits issued for phosphate mining activities on different parcels throughout central Florida. She also has experience with COE dredge and fill wetland permitting for a variety of types of development projects and has assisted clients before state and federal wildlife agencies in addressing the presence of threatened or endangered species on lands proposed for development.

The attorneys working in this practice area include: Richard S. Brightman, Miguel Collazo, III, Frank E. Matthews, Eric T. Olsen, Amelia A. Savage, Angela M. Uhland and Susan L. Stephens.