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Walther v. United States

ELR Citation: 45 ELR 20213
Nos. 3:15-cv-0021, (D. Alaska, 11/09/2015) (Holland, J.)

A district court dismissed a mitigation bank owner's APA claims against the U.S. Army Corps of Engineers for requiring a CWA §404 permittee to purchase "invalid" banking credits from another mitigation bank in connection with a railroad project. The owner claimed that despite the fact that his mitigation banking credits were the highest ranked ecologically preferred compensatory mitigation available, the Corps required the railroad to buy credits from another bank. The owner alleged those credits were invalid because those lands were not under any threat of destruction or adverse modifications when it was encumbered by a conservation easement. The owner therefore filed suit for economic injuries. But the owner lacks standing because the alleged injuries are not likely to be redressed by any relief the court might grant. Regardless of whether the purchased credits were invalid under the compensatory mitigation rule, there is no guarantee that the owner's bank credits would be selected. A CWA §404 permittee is not required to use a mitigation bank to meet its compensatory mitigation requirements. Rather, a permittee may also use an in-lieu fee program or it can directly implement compensatory measures at the impact site itself.