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National Mitigation Banking Association v. United States Army Corps of Engineers

February 14, 2007

NATIONAL MITIGATION BANKING ASSOCIATION; LAND AND WATER RESOURCES, INC.; WETLANDS MITIGATION OF ILLINOIS, L.L.C; AND WETLANDS RESEARCH, INC., PLAINTIFFS,
v.
UNITED STATES ARMY CORPS OF ENGINEERS; COL. GARY E. JOHNSTON, IN HIS OFFICIAL CAPACITY AS DISTRICT ENGINEER OF THE CHICAGO DISTRICT; AND MITCHELL A. ISOE, IN HIS OFFICIAL CAPACITY AS CHIEF OF THE REGULATORY BRANCH OF THE CHICAGO DISTRICT, DEFENDANTS.



The opinion of the court was delivered by: Judge Joan H. Lefkow

MEMORANDUM OPINION AND ORDER

I. Introduction

The City of Chicago ("the City") has a plan to address the ubiquitous delays that plague O'Hare International Airport.*fn1 This plan, the O'Hare Modernization Program (the "OMP"), involves filling wetlands within airport grounds. On December 19, 2005, the United States Army Corps of Engineers (the "Corps" or "USACE") issued a permit to the City under Section 404 of the Clean Water Act allowing it to fill 97.1 acres of wetlands in furtherance of the OMP. As a condition of the permit, the Corps required the City to satisfy certain requirements to mitigate the environmental damage. The first requirement was that the City pay approximately $4.5 millon to a mitigation bank provider in exchange for 62 acres' worth of mitigation credits, and the second was that the City pay a $26 million fee to an in-lieu fee provider that agreed to undertake an additional 280 credits of mitigation.

Plaintiffs are three Illinois companies: Wetlands Research, Inc. ("WRI"); Land and Water Resources, Inc. ("LAWR"); and Wetlands Mitigation of Illinois, L.L.C. ("WMI") and a national membership association to which they belong, the National Mitigation Banking Association ("NMBA") (collectively, "plaintiffs"). Defendant United States Army Corps of Engineers ("the Corps") is a federal agency; defendant Colonel Gary E. Johnston ("Johnston") was District Engineer of the Chicago District of the Corps at the time that the Section 404 permit was issued to the City; and defendant Mitchell A. Isoe ("Isoe") is Chief of the Regulatory Branch of the Chicago District of the Corps (collectively, they are referred to as "defendants" or "the Corps"). Plaintiffs claim that in issuing this permit, the Corps violated its duties under the National Environmental Policy Act ("NEPA") and the Clean Water Act (the "CWA"). They filed their complaint in this case exactly five months after the permit was issued (on May 19, 2006). Complaint, Dkt. No. 1.

This court has jurisdiction under 28 U.S.C. § 1331. The parties' cross-motions for summary judgment were fully briefed on October 17, 2006. On November 9, 2006, the parties filed a joint motion for a hearing and also requested a resolution of the case as quickly as possible based on the possibility of disbursement of funds by the in-lieu fee provider. Dkt. No. 43. Oral argument was held on November 30, 2006. After a thorough review of the parties' materials and the administrative record, the court now denies plaintiffs' motion for summary judgment [#19] and grants defendants' cross-motion [#25].

II. Facts

A. Background

O'Hare International Airport ("O'Hare") is one of the busiest airports in the world. Administrative Record ("AR"), at 11010; 103393-94. It plays a vital role in our National Airspace System as an airline hub, a large mid-continent market, and a key international gateway. Id. O'Hare is also a major contributor to delays. Id. In 2003, it experienced more delays than any other airport in the country: a total of 3,840,493 minutes. AR-11010. Every day, an average of 189 planes were "significantly delayed," meaning delayed by more than 15 minutes. Id. Due to the significant role that O'Hare plays for connecting traffic, this level of delay affects many other airports and causes further inefficiencies throughout the National Airspace System and, literally, the whole world. AR-103402. The Federal Aviation Administration (the "FAA") has determined that one major cause for this is inadequate all-weather airfield capacity afforded by the airport's current configuration. AR-103394. The FAA forecasts that demand at O'Hare will continue to grow and that by 2018 it will serve approximately 50 million passengers per year. AR-103393-94.

On June 29, 2001, the City's Mayor, Richard M. Daley, announced a plan to enhance the capacity and efficiency of O'Hare, which eventually evolved into the the OMP. AR-103392. The City proposed to enhance capacity and reduce delay by modernizing O'Hare's runway system and constructing multiple parallel runways to replace O'Hare's triangular runway layout. Defendants' Br., at 10 (citing AR-103392); AR-10547. The City requested FAA approval of this proposal in 2002, which triggered the need to prepare an environmental impact statement for the project pursuant to NEPA. Defendants' Br., at 10. In addition, because the project involved the filling of wetlands, the City needed to obtain a Section 404 individual permit from the Corps pursuant to the CWA. Id.

O'Hare is located within the Des Plaines River watershed, which is an area encompassing more than 300,000 acres, 15 sub-watersheds, and parts of Illinois and Wisconsin. Defendants' Statement, at ¶ 3. The wetlands that would be affected by the OMP are mostly small, isolated sites on O'Hare property that have low functional value for water quality and wildlife habitat. AR-11044; 13562-65. They reflect the urban stresses associated with an international airport that is surrounded by residential, commercial, and industrial land use. AR-13564-65. The O'Hare wetlands are not open to the public. AR-18959. Furthermore, the U.S. Department of Agriculture maintains a staff at O'Hare to deter birds and animals from using the undeveloped land because of the danger that the wildlife poses to airplanes in the surrounding airspace. AR-13513. Some of the undeveloped land, however, is still used as a wildlife habitat. AR-13512.

Plaintiffs share a common interest in creating, restoring, enhancing, and preserving Chicago-area wetlands, and in promoting wetland science and education in general. Affidavit of Donald Hey, Ex. 2 to Plaintiffs' Reply ("Hey Aff."), at ¶¶ 3, 6, 7; Affidavit of John Ryan, Ex. 3 to Plaintiffs' Reply ("Ryan Aff"), at ¶¶ 3-4; Defendants' Statement, at ¶ 1. WRI, LAWR, and WMI have pursued this interest through developing mitigation banks in and around the Des Plaines River watershed. Hey Aff., at ¶ 5; Ryan Aff., at ¶¶ 3, 4, 8, 27; Affidavit of David T. Urban, Ex. 1 to Plaintiffs' Reply ("Urban Aff."), at ¶ 10; Affidavit of Steve Weller, Ex. 4 to Plaintiffs' Reply ("Weller Aff."), at ¶ 7. Plaintiffs proposed several of their mitigation sites as potential mitigation for the OMP's wetland impacts, but only one was approved. Hey Aff., at ¶¶ 27, 28; Ryan Aff., at ¶ 19; AR-23394; 20677; Defendants' Br. At 12.*fn2

The City started searching for potential mitigation bank sites for its Section 404 permit in the middle of 2002, more than two years before it filed its application with the Corps and three years before the Corps issued the permit. Plaintiffs' Statement, at ¶ 13; AR-18963. The City contracted for an assessment of available offsite mitigation, which resulted in a March 2003 report entitled "O'Hare Modernization Project: Wetland Mitigation Options." Id. At a meeting with the Corps and others on September 17, 2003, the City presented the results of this study, and the City's consultant reported that "many potential sites are available." Id. at ¶ 14. A PowerPoint presentation at that meeting showed a schedule that had the City selecting the mitigation sites first and filing its permit application thereafter (this schedule was a part of the City's "conceptual" plan, however, and the cited document did not state that the timing arrangement was mandatory). Plaintiffs' Statement, at ¶ 15.

In the Spring of 2004, the City issued a request for proposals ("RFP") to mitigation providers for potential mitigation bank sites. The RFP generated at least 14 responses. Plaintiffs' Statement, at ¶ 16; Defendants' Statement, at ¶ 14. When the City finally filed its Section 404 permit application in November of 2004, it included information regarding these sites along with a description of its conceptual mitigation plan. Plaintiffs' Statement, at ¶ 17; AR-18963-77. In meetings held at the same time that the application was filed, the proposed mitigation plan was explained, and the City provided a draft timetable that had mitigation site selection and approval predating permit issuance. Plaintiffs' Statement, at ¶ 18. There was no statement in the timetable that this sequence of events was mandatory. AR-23573.

The City's Section 404 permit application stated that the OMP would impact 153 acres of wetlands and "Waters of the United States." AR-18965. This included 92.7*fn3 acres of wetlands within the jurisdiction of the Corps. Id. Approximately 414 mitigation bank credits were proposed to mitigate for the loss. AR-18969. The Section 404 permit application itself is a four-volume document that is hundreds of pages long. It contains detailed information regarding the background of the OMP, a description of the project, the history of the O'Hare wetlands, potential damage that the OMP would do to the ecosystem, a discussion of the alternatives to the OMP that were considered, details regarding the proposed conceptual mitigation plan,*fn4 and a discussion of methods for minimizing damage to the area. AR-18894 et seq. The application adopts and incorporates by reference the FAA's Environmental Impact Statement ("EIS") and its discussion of purpose and need, alternatives, and environmental consequences, and states that "[e]xtensive coordination has occurred with the [Corps], [the FAA], DuPage County Department of Economic Development and Planning (DEDP), OMP, Cook County, and others to plan for the required mitigation of [] resources." AR-18939-40.

The Corps, the FAA, and the Illinois Environmental Protection Agency ("IEPA") entered into an Interagency Coordination Agreement (an "ICA") for preparing the OMP EIS.

Defendants' Statement, at ¶ 5. Under this ICA, the Corps and the FAA agreed to hold joint Public Interest Review and Draft EIS Public Hearings and Public Notices in accordance with both agencies' obligations under NEPA. Defendants' Statement, at ¶ 5. The ICA stated its purpose as "to establish a framework under which the implementation of the Corps' [sic], FAA's, and IEPA's respective responsibilities under [various laws including NEPA and the CWA] associated with aviation projects may be coordinated, streamlined, and made more efficient." AR-20563. The Corps's responsibilities were described:

When and as requested by FAA, the Corps will attend and participate in O'Hare Modernization EIS meetings, particularly as related to project purpose and need, project alternatives, environmental consequences (with special reference to wetlands and other Waters of the U.S.), response to comments, and public hearing preparation.... The Corps will identify, pursue, and, in cooperation with FAA, implement opportunities to integrate its Public Interest Regulatory process with FAA's NEPA/EIS process, with the goal in mind of reaching a decision on the issuance of a Section 404 permit contemporaneously with FAA's decision on the O'Hare Modernization EIS, as contained in a Record of Decision. The Corps shall maintain its independent review responsibilities in accordance with Section 401 of the Clean Water [Act] ... [and] will retain fully all its rights and responsibilities to approve, disapprove, or enforce all permits and permit conditions required by the O'Hare Modernization Project.

AR-20564-66.

On January 14, 2005, the FAA issued a notice of availability of the Draft Environmental Impact Statement ("the DEIS") and a notice of intent to hold public hearings on it, at which the Corps would also be present. Defendants' Statement, at ¶ 6. At the same time, the Corps issued a Joint Public Notice with IEPA of the City's Section 404 permit application. Id. One week later, the Corps issued a Supplemental Public Notice, reporting that a mitigation review team had reviewed the City's proposed mitigation sites and made a preliminary selection of six of them, which it was planning to review more extensively.*fn5 AR-20583. The Supplemental Public Notice also noted that in the Corps's preliminary review of the Section 404 permit application, it had determined that an EIS was required and "is the FAA's DEIS for O'Hare Modernization.... The FAA intends to host public hearings on the DEIS with the USACE and IEPA, who are cooperating agencies on the DEIS." Defendants' Statement, at ¶ 7; AR-20585. All three of these documents solicited public comment on the proposed actions. AR-20572; 20576; 20582.*fn6

During the public hearings on the FAA DEIS, conducted by the FAA, the Corps, and the IEPA on February 22, 23, and 24, 2005, the FAA provided information on the progress of the DEIS as well as the proposed mitigation for the Section 404 permit that included maps, photographs, and information about the potential mitigation bank sites then under consideration. Plaintiffs' Statement, at ¶ 21; AR-21737; 21779-81.

The Corps assembled a Mitigation Review Team ("MRT") to review the City's proposed mitigation bank sites. Defendants' Statement, at ¶ 15. The team included representatives from the Corps's Chicago District, the IEPA, the federal Environmental Protection Agency (the "EPA"), and the United States Fish and Wildlife Service ("FWS"). Id. The MRT conducted field evaluations of the potentially suitable sites. Defendants' Statement, at ¶ 17. As a result of these visits, the team further narrowed the number of suitable sites to three. Id.*fn7 By letter of April 6, 2005, the Corps advised the City that it was short of mitigation credits. Plaintiffs' Statement, at ¶ 25. It said We will make the suggestion that you seriously consider engaging an organization that has expertise in real estate transactions, planning, and executing wetland restoration programs to assist you in developing a potentially acceptable set of projects, if you are still interested in trying to meet your proposed schedule.

One such organization well known for their work in this area in the Chicago region is Corporation for Open Lands (CorLands), an affiliate of the Open Lands Project.... We have worked with CorLands on a number of programs over the past ten years, both having them as an administrator for a restoration program as well as a developer of a large wetland restoration program.... We have found them quite effective in identifying good projects and moving projects through from site identification and planning to full project execution. I have discussed this concept with the other members of the MRT and they believe the concept to have merit, provided that appropriate safeguards, assurances, and oversight are built into such an effort.

AR-22709-10. Finally, the Corps stated that the City could proceed in any fashion it chose to develop an acceptable mitigation plan but that a final permit decision would not be made until OMP's mitigation program was fully defined and balanced against anticipated project impacts. Defendants' Statement, at ¶ 19. Comments received by the Corps from other agencies and the public asked the Corps to consider other available*fn8 sites. Plaintiffs' Statement, at ¶ 30.

B. The Environmental Impact Statement

After receiving, considering, and addressing comments on the DEIS, the FAA released the Final Environmental Impact Statement ("the FEIS") on July 27, 2005.*fn9 Plaintiffs' Statement, at ¶ 32; Defendants' Statement, at ¶ 12. The Notice of Availability was published on August 5, 2005, with a public comment period to close on September 6, 2005. Id. The FAA issued a Record of Decision ("ROD") approving the OMP on September 29, 2005. Plaintiffs' Statement, at ¶ 32; Defendants' Statement, at ¶ 12.

After determining that the purpose and need for the OMP is to "[a]ddress the projected needs of the Chicago region by reducing delays at O'Hare, and thereby enhancing capacity of the National Airspace System[, and to] ensure that existing and future terminal facilities and supporting infrastructure ... can efficiently accommodate airport users," the FAA considered a broad range of alternatives to the City's proposed OMP, including fifteen alternatives in three categories: (1) no action, (2) non-airfield alternatives,*fn10 and (3) airport development alternatives.

AR-10616.*fn11 The FAA also considered a "blended alternative," which it created as a combination of elements of non-airfield alternatives along with limited development at O'Hare. AR-10654. This included a limited airfield improvement alternative, other modes of transportation and communication, use of other airports, new air traffic control and navigation technologies, and congestion management. Id.

The FAA conducted a two-tiered reasonableness screening process for evaluation of potential project alternatives to determine which would be retained for detailed consideration (including environmental impact analysis). It first determined which of the alternatives might meet the purpose and need of the OMP and then evaluated those that potentially could satisfy the purpose and need in terms of their feasibility and their prudence to determine which of them could be reasonable. Defendants' Statement, at ¶ 9; AR-10615-16; 10657-60. In that second tier, the FAA examined factors such as environmental and social factors, operational efficiency factors, economic factors, and national policy factors. Id. The FAA stated that in applying its second tier of review, it was keeping the CWA "practicable alternatives" standard in mind. AR-10657-58. Alternatives that passed both of the first two tiers were retained for detailed consideration (including environmental impact analysis). AR-10615-16.

The FAA determined that the non-airfield alternatives on their own did not have the potential to meet the purpose and need of the OMP. AR-10632-35; 10647-52. While the blended alternative was created and retained for secondary consideration, the FAA ultimately eliminated it too because it consisted of several speculative technological and infrastructure developments combined with a fundamental restructuring of current marketplace aviation demand, which is not within the control of the City or the FAA to implement. Plaintiffs' Statement, at ¶ 63; AR-10663-64. Additionally, the FAA concluded that the blended alternative would yield the least delay reduction, would not serve the forecast demand at O'Hare, and would have environmental impacts substantially equal to the other on-site alternatives. Id. After the elimination of the non-airfield alternatives and the blended alternative, as well as some of the airport development alternatives, four development alternatives were retained for detailed consideration: Alternatives C (the OMP), D, and G, in addition to a no-action alternative,*fn12

Alternative A. AR-10666.

The FEIS includes more than 500 pages of scientific studies, predictions, and analyses of the environmental consequences of the OMP and the other alternatives that were retained for detailed consideration, including 16 pages specifically devoted to wetlands, plus a 17-page wetlands appendix. AR-11528 - AR-11543; N-40 - N-56. This section notes and applies the CWA's practicable alternatives standard and states that the Corps was extensively consulted in the preparation of the FEIS. Id. The O'Hare wetlands are described as being mostly hydrologically isolated, providing few beneficial wetland functions and values, and as having been adversely affected by human activities. AR-11532. Among the three on-site alternatives, Alternatives C and G would result in the filling of 154.2 acres of wetlands and Waters of the United States, while Alternative D would have temporarily spared 7.65 of those acres. AR- 11535. The 7.65 acres would have been expected to dry up over time anyhow, however, so the three on-site alternatives were ultimately determined to have identical impacts to wetlands. AR-11535.

A section was included in the FEIS regarding mitigation for damage to wetlands. AR-10824 et seq. This section described the City's then-current conceptual mitigation plan, which had been revised since the filing of the City's Section 404 permit application but did not yet include any information about the possibility of using an in-lieu fee arrangement. Id. It said that "[m]instigation will be described in the USACE Section 404 Individual Permit when issued. Adequate wetland mitigation is available." AR-10828.

It is evident that the Corps participated in the preparation of the FEIS. The FEIS explicitly stated its intention to satisfy the requirements of the CWA: "Because the proposed action involved the application for a permit from the U.S. Army Corps of Engineers to fill Waters of the U.S., issuance of the 401 Water Quality Certification from the Illinois EPA, and required FAA findings regarding wetlands and floodplains, the FAA must also comply with the alternative analysis of the Clean Water Act, requiring a finding that no practicable alternative exists that would avoid or further minimize impacts to the resources at issue." AR-10657. Additionally, it noted that the Corps "is reviewing and processing a Section 404 permit application ... [and] will use the information developed during this EIS process to reach decisions on project alternatives." AR-10824. In the Executive Summary, the FEIS states, "The FAA acknowledges and appreciates the significant role played by the following agencies in this EIS process by serving as cooperating agencies: ... United States Army Corps of Engineers." AR-11005. See also AR-10504; 10804.

C. The In-Lieu Fee Arrangement

By September 12, 2005, the Corps issued a Second Supplemental Public Notice in which it provided the public with information on the City's revised mitigation proposal, including the in-lieu fee. Plaintiffs' Statement, at ¶ 33; Defendants' Statement, at ¶ 26. This Notice provided a description of the new mitigation proposal that the City had submitted to the Corps. Defendants' Statement, at ¶ 28. It solicited public comment during a 30-day period (which was later extended to October 24, 2005), Defendants' Statement, at ¶ 26, and said that comments would be used in the preparation of an Environmental Assessment and/or Environmental Impact Statement pursuant to NEPA. Defendants' Statement, at ¶ 27. The Notice said that "[a] Final Environmental Impact Statement was published on July 28, 2005 and is available at http://www.agl.faa.gov/OMP/FEIS.htm." Defendants' Statement, at ¶ 27. The Notice described the City's proposal as involving purchasing credits from the new Lily Cache Creek Wetland Mitigation Bank ("Lily Cache") and establishing an in-lieu fee program whereby the City would pay a mitigation fee to the non-profit corporation, CorLands. Id. The Notice indicated that "[a] formal In-Lieu-Fee agreement would be established between [another] MRT and CorLands for the establishment and operation of multiple mitigation sites" and listed the potential contents of such an agreement.*fn13 Id. (citing AR-20592); Defendants' Statement, at ¶ 29. The Notice also described the role that a new MRT (the Corps, the FAA, the EPA, the IEPA, and the FWS) would play in reviewing and approving appropriate mitigation projects from the mitigation proposals that CorLands would make. Id.

The comments that the Corps received in response to the Second Supplemental Public Notice were mixed. The Sierra Club commented, "We were surprised and dismayed at the recent zigzag taken by the Corps and the [OMP] regarding the 153 acres of destroyed wetlands planned for the airport expansion.... We are not sure what went on behind the scenes that led to this flawed solution." Plaintiffs' Statement, at ¶ 34. Many comments (including some from plaintiffs) emphasized their opinion that an impact of 97.1 acres was too large for an in-lieu fee, Plaintiffs' Statement, at ¶ 37, and the Headquarters of the Corps advised the Chicago Corps District that use of an in-lieu fee for the OMP's impacts would be unusual. Plaintiffs' Statement, at ¶ 36. On the other hand, the FWS wrote a letter saying that "we recognize the significance of this important transportation improvement project and believe an in-lieu fee approach can be developed with appropriate controls to ensure that adequate mitigation is identified and implemented within a reasonable timeframe." Defendants' Response to Plaintiffs' Statement, at ¶ 35. USEPA expressed the need to establish a "comprehensive mitigation plan," and an "interagency agreement that outlines an interagency approval process that is consistent with the federal banking guidance." Id. It noted that "[t]he approach outlined in the public notice is a good start to the development of such a plan." Id.

On December 19, 2005, the Corps issued Permit 200301000 under Section 404 of the CWA, 33 U.S.C. § 1344, authorizing the City to fill 97.1 acres of wetlands under the jurisdiction of the CWA. Plaintiffs' Statement, at ¶ 2. As mitigation, the permit requires the City to (1) pay a flat fee of $26,466,429.00 to CorLands as an in-lieu fee provider responsible for 280.14 acres of off-site mitigation, and (2) purchase 62.26 acres of mitigation credits from Lily Cache for $4,544,980.00. Id. The permit also describes, but imposes no requirements for, the mitigation for impacts to the approximately 56 acres of wetlands and streams that will be filled but are not under federal jurisdiction. Id.

In conjunction with the issuance of the permit, the Corps prepared a Permit Evaluation and Decision Document, which contained an Environmental Assessment (an "EA") and a finding of no significant impact (a "FONSI") pursuant to NEPA. Plaintiffs' Statement, at ¶¶ 3, 66. Plaintiffs' Statement, at ¶ 66. This EA referenced the FAA's FEIS and quoted directly from several portions of it. AR-20601 et seq. The Corps stated that it was a cooperating agency in the review of the DEIS, and that it "agreed to adopt and incorporate the [FEIS] into our decision making process with respect to key issues such as the [Section] 404(b)(1) guidelines, purpose and need, alternatives analysis, [and] public interest review factors." AR-20602; see also Plaintiffs' Statement, at ¶ 60. The Corps summarized and responded to the concerns that were raised regarding the proposed in-lieu fee in the comments to its Second Supplemental Public Notice, but ultimately adopted the in-lieu fee and the purchase of credits from Lily Cache as the required mitigation for the OMP. AR-20607-13; 20618-20. The Corps also reviewed the potential alternatives to the project as discussed in the FEIS and concluded that there were no practicable alternatives to the OMP. AR-20628.

The in-lieu fee arrangement is governed by no less than four separate but related documents. First, there is an August 26, 2005 agreement between the City and CorLands entitled "Agreement Concerning In-Lieu Mitigation Fee for the Chicago-O'Hare International Airport O'Hare Modernization Program Between City of Chicago and Corporation for Open Lands." AR-21244. Second, there is the "O'Hare Modernization Program Prospectus for Providing Wetland Mitigation," prepared by CorLands and dated August 31, 2005. AR-20659; 21108. Third, there is an Interagency Coordination Agreement (an "ICA") between CorLands and the Corps, the FAA, the FWS, the EPA, and IEPA (the MRT), executed on December 13, 2005, which establishes procedures to be followed in the administration of the O'Hare Modernization Mitigation Account (the "OMMA") (the fund for the OMP in-lieu fee arrangement). AR-20633. This ICA attaches the agreement and the prospectus as appendices. AR-20635-36; 20644-74. And finally, the Section 404 permit issued by the Corps requires that the City "adhere to all requirements and obligations as set forth in the [agreement] and [the ICA]." AR-20677. The parties agree that the the in-lieu fee arrangement was not approved as a mitigation bank. Plaintiffs' Statement, at ¶ 54. It lacks the detailed site-specific mitigation plans required of a mitigation bank. Id.

Through the interaction of these documents, CorLands and the MRT are bound to detailed standards for the execution of the in-lieu fee arrangement and the management of the OMMA. The agreement between the City and CorLands says that CorLands will use the fee to (1) identify and assess mitigation opportunities in the Des Plaines River watershed within the Chicago District of the Corps for the purpose of generating mitigation credits; (2) implement practical plans to protect, purchase, enhance, restore, and monitor the projects; (3) pay costs and expenses of administering the funds in the OMMA; and (4) establish financial, technical, and legal mechanisms to work towards the long term success of the projects in consultation with the Corps. AR-21245. Under this agreement, CorLands obtains significant, immediate financial benefits which are not applied to actual wetland mitigation. The agreement specifically includes the following:

* A provision that the City will pay CorLands an in-lieu fee of $25,947,479.00 and an administrative fee of $518,950.00;

* A provision that CorLands may leverage the in-lieu fee with funds from other sources to further enhance the mitigation projects;

* A provision that CorLands will place the in-lieu fee with a financial institution and use the earnings in a manner consistent with the agreement;*fn14

* A requirement that Corlands provide financial reports for the OMMA account to each member of the MRT;*fn15

* A provision that all books and records in connection with the in-lieu credits will be open to inspection by the City;

* An agreement by CorLands to be solely responsible for providing the City with 280.14 credits, and for satisfying the mitigation requirements of the OMP permit with respect to those credits; and

* An acknowledgement by CorLands that the Corps may use the agreement to document CorLands' commitment to furnish the in-lieu credits to the City.

21244-21257.

CorLands' prospectus describes the overall goal of the OMMA and includes the following initial provisions:

* CorLands is able to purchase mitigation credits from approved and permitted wetland mitigation banks within the watershed;

* An individual project prospectus will be submitted for each project proposed for funding, which will include specific information addressing site selection criteria, technical feasibility, method of credit generation, buffers, performance criteria, goals and objectives, baseline conditions, management, monitoring and reporting protocols, contingency plans and responsibilities, financial assurances, compensation ratios, and long-term protection and management; and

* All projects considered for funding under the OMMA will be reviewed by the MRT, with the Corps having final responsibility for the approval of projects.

AR-21108-12.

The Inter-Agency Coordination Agreement includes the following:

* A requirement that the mitigation be established in accordance with applicable authorities (including the 1997 Interagency Coordination Agreement on Wetland Mitigation Banking within the Regulatory ...


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