The Florida Bar
www.floridabar.org
The Florida Bar Journal
April, 2010 Volume 84, No. 4
Planning and Permitting to Protect Wetlands: The Different Roles and Powers of State and Local Government

by Richard Grosso and Jason Totoiu

Page 39

The First District Court of Appeal’s recent decision in Johnson v. Gulf County, Case No. 1D08-6189 (Fla. 1st DCA 2009), reinforced the principle that a local government has the authority under F.S. Ch. 163, Part II, to regulate and even prohibit development within wetlands.1 In Johnson, the court overturned a trial court ruling that, because neither the U.S. Army Corps of Engineers nor the Florida Department of Environmental Protection asserted jurisdiction over an approximately two-acre tract of wetlands, the county was not required to enforce a provision in its comprehensive plan prohibiting development within 50 feet of wetlands.2 The First District held that when the plain language of a county’s comprehensive plan prohibited development within 50 feet of wetlands, regardless of whether those wetlands are under the jurisdiction of federal and/or state permitting agencies, the county has the authority and duty under F.S. Ch. 163, Part II, to enforce its comprehensive plan and prohibit development from occurring within these areas.3 “The jurisdiction of these two agencies,” wrote the court, “is not determinative of the county’s jurisdiction to administer its comprehensive plan and land use regulations.”4

The First District’s decision in Johnson did not involve an express claim that the county was legally preempted from establishing and enforcing restrictions on development near wetlands, but presumes and illustrates the broad authority local governments have in adopting and enforcing comprehensive plan policies to regulate development within wetlands. This article examines the recurring issue in environmental and land use law of just how far local governments may go in regulating developments within wetlands and to what extent state permitting rules may preclude or preempt local wetland protection ordinances.

As this article explains, the fundamental difference between Ch. 163 and state wetland permitting laws found in F.S. Ch. 373 is that the former gives authority to local governments alone to determine, in the first instance, the most appropriate use of all lands, including wetlands, while state permitting laws are intended to ensure that all impacts to wetlands that do occur as a result of permitted development are adequately offset. Accordingly, local governments have broad authority to limit and even prohibit development within wetlands and are not preempted from doing so by state environmental permitting laws. Only in the case where mitigation is required by a local government to offset impacts to wetlands do state permitting rules preclude local governments from implementing their own mitigation requirements. As development and other activities strain Florida’s wetland systems, the Growth Management Act should become an increasingly important tool for local governments to direct development away from these sensitive resources while advancing programs, such as the Comprehensive Everglades Restoration Plan, that are intended to ensure the continued functioning of important wetland systems. Together, state permitting and planning rules can work in harmony to protect Florida’s most threatened resources.

Why Protect Wetlands?
Wetlands play an extremely important role in Florida’s complex ecosystem. Wetlands provide habitat for a wide variety of fish and wildlife, are an integral part of the life cycle of two-thirds of the commercial fish and shellfish harvested along the Atlantic Coast and in the Gulf of Mexico, and offer numerous water cleansing and flood protection functions.5 Before Europeans settled in America, most of South Florida, from Lake Okeechobee to Florida Bay, consisted of freshwater forested or herbaceous wetlands.6 Yet, Florida’s ever increasing population and desire to accommodate such growth has resulted in a 50 percent loss of the state’s wetlands.7

Florida’s Wetland Permitting Program: F.S. Ch. 373
The Florida Water Resources Protection Act, F.S. Ch. 373, is intended to carry out the policies of Fla. Const. art. II, §7, by preserving natural resources, protecting fish and wildlife, minimizing storm water impacts to surface waters, and providing for the management of water resources. The Florida Water Resources Protection Act provides the Department of Environmental Protection (DEP) and the water management districts (the districts) with the responsibility of regulating the state’s wetlands through the environmental resource permit (ERP) program.

The ERP program grants DEP and the districts the authority to require permits and impose reasonable conditions to assure that the construction or alteration of any storm water management system, dam, impoundment, reservoir, appurtenant work, or works, comply with the provisions of F.S. Ch. 373, any applicable rules, and will not harm water resources.8

F.S. §373.414 directs the districts to require applicants for an ERP to provide reasonable assurances that state water quality standards will not be violated. State permitting rules require applicants to eliminate or reduce development impacts to wetlands and demonstrate that the permitted activity in or on surface waters or wetlands will not be contrary to the public interest. F.S. §373.414(1)(a) lists the criteria the districts must consider in determining whether the action will be contrary to the public interest.9

If the applicant is unable to eliminate or reduce wetland impacts and meet these criteria, F.S. §373.414(1)(b) requires the permitting agency to “consider measures proposed by or acceptable to the applicant to mitigate adverse effects that may be caused by the regulated activity.” F.S. §373.414(1)(b) (4) further provides:


If mitigation requirements imposed by a local government for surface water and wetland impacts of an activity regulated under this part cannot be reconciled with mitigation requirements approved under a permit for the same activity issued under this part, the mitigation requirements…including application of the uniform wetland mitigation assessment method…shall be controlled by the permit issued under this part (emphasis added).


F.S. §373.414(18) directs the districts “to develop a uniform mitigation assessment method for wetlands and other surface waters.” Commonly referred to as “UMAM,” this method “shall provide an exclusive and consistent process for determining the amount of mitigation required to offset impacts to wetlands and other surface waters, and, once effective, shall supersede all rules, ordinances and variance procedures from ordinances that determine the amount of mitigation needed to offset such impacts.”10 UMAM “shall be binding on the…local governments…and shall be the sole means to determine the amount of mitigation needed to offset adverse impacts to wetlands and other surface waters.”11 UMAM was adopted by rule and is codified at Fla. Admin. Code Title 62, Ch. 345.

The 1985 Florida Growth Management Act: F.S. Ch. 163
In Florida, local governments have the exclusive authority to make the basic determinations about the appropriate land uses throughout their jurisdictions, including wetlands, based on a broad range of factors, including wetland ecology. The Local Government Comprehensive Planning and Land Development Regulation Act (F.S. Ch. 163, Part II) (the act) requires all local governments to adopt a comprehensive plan determining the allowable uses, densities and intensities, and development standards for all lands within their boundaries, and ensure that all development be consistent with the adopted plan.12

Directly relevant to the protection of wetlands is F.S. §161.3161(3):

It is the intent of this act that…local governments can…encourage the most appropriate use of land, water, and resources….Through the process of comprehensive planning, it is intended that…local government can…conserve, develop, utilize, and protect natural resources within their jurisdictions. (Emphasis added.)


The act grants counties the power and responsibility to 1) plan for their future development and growth; 2) adopt and amend comprehensive plans, or elements or portions thereof and to guide their future development and growth; 3) implement adopted or amended comprehensive plans by the adoption of appropriate land development regulations or elements, and; 4) establish, support, and maintain administrative instruments and procedures to carry out the provisions and purposes of this act.13

A local comprehensive plan must also be consistent with the state comprehensive plan,14 which contains similar wetland protection mandates. The state plan has a goal to “maintain the functions of natural systems and the overall present level of surface and ground water quality.”15 It also has policies to “protect and use natural water systems,” “encourage the development of a strict floodplain management program by state and local governments designed to preserve hydrologically significant wetlands,” “protect surface and groundwater quality and quantity in the state,” and “reserve from use that water necessary to support...recreation and the protection of fish and wildlife.”16 The state plan emphasizes the need to “protect and acquire unique natural habitats and ecological systems, such as wetlands.”

The plan establishes additional policies that “conserve wetlands,” “protect and restore ecological functions of wetland systems to ensure their long-term environmental, economic and recreational value,” and “emphasize the acquisition and maintenance of ecologically intact systems in all land and water planning, management, and regulation.”17 Plans are required to include goals, objectives, and policies that, among other requirements, protect, conserve, and appropriately use natural resources and other areas with development constraints,18 coordinate land uses with topography, soils, and the availability of infrastructure,19 and provide for the compatibility of adjacent land uses.20

Future land uses are to be allocated based upon surveys, studies, and data regarding the area, including the amount of land required to accommodate anticipated growth, the projected population of the area, the character of undeveloped land, the availability of public services, and the need for redevelopment.21 This general data and analysis requirement is supplemented by the specific data and analysis requirements in other sections of the statute and the statute’s implementing regulations (Fla. Admin. Code 9J-5) concerning the identification and analysis of natural resources and other areas with development constraints, the suitability of land for various uses, and the availability of facilities, services, and infrastructure.22 Fla. Admin. Code 9J-5.013(a)-(b) expressly requires local governments to direct development away from wetlands and other environmentally sensitive areas where such development is incompatible with their protection and conservation:

(a) Wetlands and the natural functions of wetlands shall be protected and conserved. The adequate and appropriate protection and conservation of wetlands shall be accomplished through a comprehensive planning process which includes consideration of the types, values, functions, sizes, conditions and locations of wetlands, and which is based on supporting data and analysis. (b) Future land uses which are incompatible with the protection and conservation of wetlands and wetland functions shall be directed away from wetlands…. Land uses shall be distributed in a manner that minimizes the effect and impact on wetlands….Where incompatible uses are allowed to occur, mitigation shall be considered as one means to compensate for loss of wetland functions. (Emphasis added).


Thus, while DEP and the districts have the authority and responsibility to ensure the protection of the state’s wetland and water resources through the environmental resource permitting program, they do not decide whether a subdivision, shopping center, or other proposed land use for which the ERP is being sought is the appropriate land use for the area. That is the role and responsibility of local governments for all lands (uplands and wetlands) within their borders. It is not lost or preempted by the existence of a state or federal regulatory program or choice not to exercise regulatory jurisdiction.

F.S. §163.3184(6)(c) specifically addresses the overlap of permitting programs with the fundamental planning function of local governments. Comprehensive plans may require that wetland impacts be avoided altogether and that only low-intensity uses be allowed in or near them. Florida law preempts only the mitigation aspects of any permitting program a local government may choose to rely upon when it does allow development or other impacts to wetlands. The act prohibits the Department of Community Affairs from requiring local governments to duplicate or exceed any federal, state, or regional permitting program, but expressly authorizes the agency to make compliance determinations regarding planning densities and intensities:

When a federal, state, or regional agency has implemented a permitting program, the state land planning agency shall not require a local government to duplicate or exceed that permitting program in its comprehensive plan or to implement such a permitting program in its land development regulations. Nothing contained herein shall prohibit the state land planning agency in conducting its review of local plans or plan amendments from making objections, recommendations, and comments or making compliance determinations regarding densities and intensities consistent with the provisions of this part.23


This language emphasizes that the local government’s role is land use planning in terms of determining what type and what intensity of uses may be allowed in wetlands. The legislature sought only to avoid duplicative permitting requirements. Thus, the most basic requirement in the act, and the fundamental distinction between planning and permitting, is that local comprehensive plans must designate “proposed future general distribution, location, and extent of the uses of land….”24 They must define each land use category in terms of type of uses included and specific standards for the density or intensity of use.25 Further, they must adopt standards to be followed in the control and distribution of population densities and building and structure intensities.26 The legal authority and requirement to establish the extent, location, and intensity of future land uses (a power clearly not available to state or regional permitting agencies) is one of the most critical and strictly enforced requirements of the act.27

Florida’s Wetland Permitting Program Does Not Preempt Local Government’s Ability to Prohibit Impacts to Wetlands
The limitations imposed by F.S. §373.414(1)(b) apply only when a local government allows for the development of wetlands subject to mitigation. F. S. §373.414(1)(b)(4) provides that if mitigation requirements imposed by a local government for wetland impacts cannot be reconciled with mitigation requirements approved under a state permit for the same activity, the mitigation requirements are controlled by the ERP. Therefore, if a county program allowed development of wetlands subject to mitigation, F.S. §373.414(1)(b) would likely require the mitigation requirements to be controlled by the ERP. However, if a county’s comprehensive plan prevents impacts to wetlands, thereby precluding the use of mitigation, this state “preemption” is inapplicable.

The express language of the statute should end any debate on this question. Nevertheless, an attorney general opinion28 provides further support for this conclusion. In 1994, Martin County asked the state attorney general the following question:

Does Section 373.414(1)(b), Florida Statutes, prohibit a local government from prohibiting development of wetland areas under its county comprehensive growth management plan when the water management district or the Department of Environmental Protection has granted a permit that would allow development of wetlands subject to mitigation requirements?


At the time, the Martin County Comprehensive Plan prohibited the alteration and development of viable wetland areas except in certain circumstances, and the county did not allow for wetlands mitigation. With few exceptions, this is still the case today.29 The attorney general opined that:

I find nothing in section 373.414(1)(b), Florida Statutes, that seeks to alter the power of a local government pursuant to its comprehensive plan to control growth and development within its boundaries. Rather, the provisions of section 373.414, [Fla. Stat.], would appear to apply only to those instances in which development of wetlands is permitted subject to mitigation…. Section 373.414(1)(b), [Fla. Stat.], thus appears to apply when local government regulations permit the development of wetlands and there is a conflict between state and local mitigation requirements. In such cases, the state mitigation requirements will prevail over any mitigation requirements adopted by the local government that cannot be reconciled with those of Part IV, [Ch.] 373, [Fla. Stat.]. Where, however, as in the instant inquiry development of wetlands is not permitted under the local government’s comprehensive growth plan, the statute would appear to be inapplicable.30


Because F.S. §373.414 applies only to instances when development of wetlands is permitted subject to mitigation, it is inapplicable where a policy prohibits development of wetlands and, thus, precludes the use of mitigation. By instructing the state, its agencies, and local governments to apply the requirements of F.S. §373.414 only to those instances when wetland development is permitted subject to mitigation, the legislature has effectively prohibited its application to those instances when wetland development is prohibited and mitigation is a nonissue. The attorney general opinion concluded that F.S. §373.414 did not “preempt” Martin County from adopting and enforcing policies that prohibited wetlands development.

The adoption in 2004 of the Uniform Mitigation Assessment Methodology (UMAM) set forth in F.S. §373.414 and the implementing administrative rule do not alter this analysis. F.S. §373.414(18) supersedes “all rules, ordinances and variance procedures from ordinances” only to the extent they are needed to “determine the amount of mitigation needed to offset such impacts.” As the UMAM rule (Fla. Admin. Code 62-345.100(3)(a)) explains, “this method is not applicable to activities for which mitigation is not required.” Therefore, the UMAM rule would govern the mitigation requirements for a local government program that allows for the filling of wetlands. However, when a county chooses to adopt a plan policy prohibiting all wetland impacts, with no option for mitigation, UMAM’s mitigation requirements would not apply.

Thus, neither Ch. 373 nor Ch. 163 precludes local governments from adopting and enforcing a comprehensive plan policy that prohibits development of wetlands and a comprehensive plan policy to that effect is entirely valid.31 It is only when a local government chooses to allow wetland impacts and sets a permitting program to regulate such impacts that state law precludes the adoption of mitigation standards that are more stringent than those adopted by the state.

Why Planning for Wetland Protection Is Important
It may appear to be a fairly simple proposition, but it is worth emphasizing: Permitting is not planning, and planning is not permitting.32 Whereas state permitting laws prescribe how much environmental damage is allowed by a particular land use, state planning law requires local communities to direct inappropriate or intense land uses away from environmentally sensitive wetlands and enables local governments to consider the “big picture.”33 Permitting programs help ensure that if activities must occur in or around wetlands, they implement design modifications to minimize impacts.34 But permitting programs, by and large, do not plan for future land development and do not use and identify and implement long-range goals, objectives, and policies based on a comprehensive assessment of natural resources in a particular area in light of future growth projections and community needs and desires. Because permitting focuses on the “how” rather than the “what,” “where,” and “when,” relying on a permitting program alone to plan for the future “is a losing proposition.”35 It is in view of these inherent limitations in the permitting process that local government prohibitions on wetland development through sound planning play a critical role in ensuring that some of the most important wetland systems remain protected. The current effort to restore the Florida Everglades provides an excellent example of the application of these principles.

Everglades Restoration
The historic Florida Everglades once flowed from the headwaters of Shingle Creek to Florida Bay.36 However, in an effort to manage for flood control, Congress authorized the Central and South Florida Project in 1948.37 This massive engineering effort resulted in the construction of more than 1,000 miles of canals and levees which forever changed Florida’s landscape and stymied the Everglades’ natural sheet flow of freshwater to sea.38 More than half of the Everglades’ original wetlands were lost.39 In 2002, Florida expressed its commitment to restoring the Everglades in partnership with the federal government under the Comprehensive Everglades Restoration Plan (CERP).40 CERP includes 68 project components throughout a 16-county region intended to provide increased water storage and delivery, restore a more natural water flow, and reestablish connections within the greater Everglades ecosystem.41

Development activities occurring in close proximity to, or within the footprint of, CERP project sites may result in significant wetland impacts, not to mention engineering obstacles, depending on their intensity and location. Development in these areas may require a dredge and fill permit from the U.S. Army Corps of Engineers (Corps) under the Clean Water Act42 and/or a state ERP43 before any alteration of wetlands can occur. Both the Corps and the districts have implemented permitting regulations and policies that guide their respective agencies in reviewing development proposals that may conflict with federal restoration project goals.44 While these regulations and policies discourage applicants from building within the footprint of CERP project sites, courts have not yet determined whether the rules strictly prohibit applicants from building in these areas.45

Many local governments have a particular interest in Everglades restoration and stand in a unique position to advance CERP through increased wetland protection. Several of Florida’s coastal communities have been plagued by harmful releases of freshwater from Lake Okeechobee into their local estuaries.46 Without CERP, these releases are likely to continue to wreak havoc not only on these local resources, but also on local economies that depend upon the estuaries for fishing, recreation, and tourism.47 These local governments, committed to advancing the goals of conservation programs such as CERP, have a strong economic incentive to protect their wetlands48 and enjoy strong legal authority in the Growth Management Act to prohibit incompatible development within and adjacent to wetlands important to the restoration and protection of this important natural system.49

Conclusion
F.S. §373.414 does not preclude a local government from adopting and enforcing comprehensive planning policies that prohibit wetlands impacts, and/or which allow only very low-density uses on and near wetlands, thereby prohibiting mitigation. This springs from the authority under Ch. 163 to establish the most appropriate uses and densities and intensities of land within its jurisdiction (based on a variety of factors) and to restrict development of wetlands. State planning laws and wetland laws are to be read to work in harmony,50 and the state’s preemption of the method for determining wetland mitigation does not preclude a local government from making the planning decision that wetlands are not appropriate places for development.

Ch. 163 requires local governments to direct development away from environmentally sensitive areas,51 while Ch. 373 sets forth the exclusive method of determining mitigation for any agency — state or local — that implements a wetland regulatory program.

The Florida Legislature has repeatedly reaffirmed the important role local programs play in protecting wetlands and has rejected attempts to prohibit local governments from enacting or enforcing wetland regulatory programs.52 The legislature’s commitment to preserving the local government’s valuable role in wetland protection should be noted and respected, and local governments should be encouraged to utilize their authority under Ch. 163 to divert development away from the most sensitive areas within their boundaries, including those areas necessary for the success of such important state conservation commitments as Everglades restoration.

1 Johnson v. Gulf County, Case No. 1D08-6189 (Fla. 1st D.C.A. Dec. 22, 2009).

2 Id. at *13-14.

3 Id. at *15-16 (finding that where the comprehensive plan unambiguously provides that “[d]evelopment within 50 feet of coastal waters and wetlands (including salt marsh areas) will be prohibited,” the plain language of the plan controls and the trial court erred by accepting expert testimony and other “parol evidence” to determine the meaning and intent of the plan’s land use policy).

4 Id. at *20.

5 See John Fumero, 1994 Survey of Florida Law — At a Crossroads in Natural Resource Protection and Management in Florida, 19 Nova. L. Rev. 77, 79-80 (1994).

6 Southeast Environmental Research Program, Florida International University Center for Plant Conservation, Current Conditions of Florida Ecosystems, An Action Plan to Conserve the Native Plants of Florida (1995), available at http://everglades.fiu.edu/serp/action/current.html. 7 John C. Tucker, Biodiversity Conservation and Ecosystem Management in Florida: Obstacles and Opportunities, 13 Fordham Envtl. L. J. 1, 12-13 (2001) (noting that “Florida’s burgeoning population and development have severely stressed the state’s natural resources, including water, wildlife, and habitat”; this has resulted in a loss of over 50 percent of the state’s wetlands).

8 An operating agreement sets forth the responsibilities of the DEP and the four water management districts in administering the program. Florida Department of Environmental Protection, See Summary of the Wetland and Other Surface Water Regulatory and Proprietary Programs in Florida (Oct. 1, 2007), http://www.dep.state.fl.us/water/wetlands/docs/erp/overview.pdf.

9 These criteria are also contained in Fla. Admin. Code Title 40E, Ch. 4; and South Florida Water Management District, Basis of Review for Environmental Resource Applications §4.2.3.

10 Fla. Stat. §373.414(18) (emphasis added).

11 Id. (emphasis added).

12 See Fla. Stat. §§163.3167, 163.3177, 163.184.

13 Fla. Stat. §163.3167(1).

14 Fla. Stat. §163.3184(1)(b).

15 Fla. Stat. §187.100(7)(a).

16 Fla. Stat. §187.100(7)(b).

17 Fla. Stat. §§187.100(9)(a) and (b).

18 See Fla. Stat. §163.3177(6)(d). Among the required elements of the plan is a conservation element, which must provide for “the conservation, use, and protection of natural resources in the area, including air, water..., wetlands, ... estuarine marshes, soils, … flood plains, rivers, bays, lakes, harbors, … fisheries and wildlife, marine habitat…, and other natural and environmental resources.” Id. (emphasis added).

19 Fla. Admin. Code R. 9J-5.006(3)(b)(1).

20 Fla. Admin. Code R. 9J-5.006(3)(c)2.

21 Fla. Stat. §163.3177(6)(a); Fla. Admin. Code R. 9J-5.006(2)(c).

22 See, e.g., Fla. Admin. Code R. 9J-5.006(2)(a) and (b); Fla. Admin. Code R. 9J-5.013(1).

23 Fla. Stat. §163.3184(6)(c).

24 Fla. Stat. §163.3177(6)(a).

25 Id. (emphasis added).

26 Id. (emphasis added).

27 See Village of Key Biscayne v. Dept. of Comm. Affairs, 696 So. 2d 495 (Fla. 3d D.C.A. 1997).

28 94-102 Op. Att’y Gen. (Dec. 6, 1994), available at http://www.myfloridalegal.com/ago.nsf/Opinions/04A011118F940F948525621 F004B33EE.

29 See Martin County Comprehensive Growth Management Plan, §§9.4.A.7.a-d (2006).

30 94-102 Op. Att’y Gen. (Dec. 6, 1994), available at http://www.myfloridalegal.com/ago.nsf/Opinions/04A011118F940F948525621 F004B33EE.

31 Martin County and Monroe County are just two examples of local governments that have maintained comprehensive plan policies for many years that preclude any impacts to wetlands. See Martin County Growth Comprehensive Plan §9.4.A.7.a-d (2006); Monroe County Year 2010 Comprehensive Plan, Policy 102.1.1 (2006) (providing a 100 percent open space requirement for undisturbed wetlands).

32 Mary Jane Angelo, Nelson Symposium on Florida’s Growth Management Legislation, Integrating Water Management and Land Use Planning: Uncovering the Missing Link in the Protection of Florida’s Water Resources?, 12 J. Law. & Pub. Pol’y 223, 232 (2001); see also California Coastal Commission v. Granite Rock Co., 480 U.S. 572, 587 (1987) (defining land use planning as “in essence choosing particular uses for the land; environmental regulation, at its core, does not mandate particular uses of the land but requires only that, however the land is used, damage to the environment is kept within prescribed limits”).

33 Id. at 233.

34 See South Florida Water Management District, Basis of Review §4.2.3.

35 Angelo, Nelson Symposium on Florida’s Growth Management Legislation, Integrating Water Management and Land Use Planning: Uncovering the Missing Link in the Protection of Florida’s Water Resources?, 12 J. Law. & Pub. Pol’y at 232-34 (2001).

36 See Development of the Central & South Florida (C&SF) Project, Why Restore the Everglades — Part 1: Understanding the Everglades Ecosystem — Past & Present, http://www.evergladesplan.org/about/why_restore_pt_01.aspx.

37 See S. Fla. Water Mgmt. Dist., Central and Southern Florida Project Comprehensive Review Study, Final Integrated Feasibility Report and Programmatic Environmental Impact Statement, Summary, at i (1999).

38 Id.

39 Id. at iii.

40 Comprehensive Everglades Restoration Plan Assurance of Project Benefits Agreement (January 9, 2002) (pursuant to Water Resources Development Act, Pub. L. 106-541, §601).

41 Id.

42 33 U.S.C. §1344 authorizes the Secretary of the Army, acting through the Corps, to “issue permits . . . for the discharge of dredged or fill material into the navigable waters at specified disposal sites.”

43 Fla. Stat. §373.414.

44 See U.S. Army Corps of Engineers Clean Water Act Implementing Regulations at 33 C.F.R. §§320.4(a)(1), 320.4(g)(4), 320.4(g)(5); South Florida Water Management District, Basis of Review for Environmental Resource Applications; Fla. Stat. §373.414, and supra note 9.

45 33 C.F.R. §320.4(a)(1) requires the Corps to evaluate a project’s “probable impacts” to the public interest and South Florida Water Management District, Basis of Review for Environmental Resource Applications §4.2.3, sets forth a similar public interest test for the issuance of environmental resource permits. Given that CERP is an environmental restoration project of national importance, it would appear that the siting of a development project within a CERP footprint would be a consideration under both of these public interest tests, and depending on the facts of each particular case, a potential basis for denial where a project would be contrary to that public interest. See also 33 C.F.R. §320.4(g)(5) (noting that the Corps will evaluate the compatibility of proposed activities in the area of a federal project).

46 S. Fla. Water Mgmt. Dist., Central and Southern Florida Project Comprehensive Review Study, Final Integrated Feasibility Report and Programmatic Environmental Impact Statement, Summary at iii (1999).

47 Id. at iii-iv.

48 See Debra Alise Spungin, Troubled Waters: Florida’s Isolated Wetlands in the Aftermath of Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 26 Nova. L. Rev. 371, 382 (2001) (“[H]ome to Everglades National Park, Florida’s economy is dependent upon the health and vitality of its natural system.”).

49 Obviously, local planning or zoning rules that have the impact of precluding all “economically viable” uses of a landowner’s property as a whole, or causing the owner to bear an “inordinate burden,” could result in property rights liability under the state or U.S. Constitution or Florida’s “Private Property Rights” legislation. See, e.g., First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, Cal. 482 U.S. 304 (1987); Graham v. Estuary Properties, Inc., 399 So. 2d 1374 (Fla. 1981), cert. denied, sub. nom., Taylor v. Graham, 454 U.S. 1083 (1981); and Bert J. Harris, Jr., Private Property Rights Protection Act, Fla. Stat. §70.001, given that many of the proposed CERP footprints lie within areas that are currently designated agricultural or other low intensity land uses (1:20 or 1:40 residential), instances where development limitations deny a landowner of all or most of the land’s economically viable use should be rare if current low-intensity land uses are allowed to continue. They can be avoided through the use of a limited property rights waiver provision authorizing the approval of the least intensive development necessary to prevent a property rights violation. Local governments can also remedy these situations through public acquisition of the lands in lieu of permitting.

50 Courts have a duty to harmonize and reconcile two statutes and to find a reasonable field of operation that will preserve the force and effect of each. American Bakeries Co. v. Haines City, 180 So. 524 (Fla. 1938).

51 Fla. Admin. Code R. 9J-5.013(3)(a)-(b).

52 See H.B. 957, 2008 Leg. (Fla. 2008); see also Rebecca Catalanello and Graig Pittman, 18 Words Imperil 3-Million Acres, St. Petersburg Times, March 31, 2007.


Richard Grosso is a professor of law at the Shepard Broad Law Center, Nova Southeastern University School of Law in Ft. Lauderdale, and the general counsel and executive director of the Everglades Law Center, Inc., a public interest environmeantal and land use law firm.

Jason Totoiu is staff counsel at the Everglades Law Center. He earned his undergraduate degree from Emory University and his law degree from Tulane Law School.

The authors acknowledge the contributions of Nova Southeastern University, Shepard Broad Law Center students Michael Braunschweig, Andrew Carter, Cristen Mercer, and Jonathan W. Taylor for their contributions to this article.

This column is submitted on behalf of the Environmental and Land Use Law Section, Paul H. Chipok, chair, and Gary K. Oldehoff and Kelly Samek, editors.

[Revised: 02-10-2012]