Florida Bar Journal

Perspective from a Delegated Local Government Attorney on the State Mangrove Trimming and Preservation Act

When most people see a mangrove, they may see a nuisance. They may see an annoying obstruction to their view of Florida’s pristine waters and flourishing ecosystem. What these people do not realize is that mangroves play a significant role in ensuring that those waters stay pristine and that the ecosystem flourishes. Indeed, many people do not realize that mangroves provide important storm damage protection for infrastructure that they rely upon, maybe even their homes or businesses.^[1] It is no surprise that, for many years, the Florida Legislature did not appear to value the importance of mangroves. It was not until 1984 that the legislature regulated mangrove trimming or alteration in any capacity, and not until 1995 that it did so comprehensively. Except for several amendments adopted a year later in 1996, the legislature has not adopted any new legislation concerning mangrove trimming or alteration since. No implementing regulations are currently on the books. However, the Florida Department of Environmental Protection (FDEP), the agency charged with mangrove regulation, has released helpful guidance.^[2] Caselaw is also sparse. Consequently, stakeholders must rely upon a nebulous state statute that is almost 30 years old when assessing the legality of mangrove trimming and alteration. This article summarizes that statute from the point of view of a government attorney charged with enforcing it.

Mangrove regulation was solely undertaken by local governments (LG) prior to 1984.^[3] Recognizing the environmental and economic benefits of mangroves, the legislature required permits statewide for mangrove alteration in Laws of Fla. Ch. 84-338, effectuated through Ch. 17-27 of the Florida Administrative Code.^[4] The statute and rule were amended several times over the next decade, but these amendments were mostly immaterial.^[5] The state regulatory scheme confused and frustrated riparian owners, who united behind prominent environmentalist Nathaniel Reed to challenge the rule in 1992 before an administrative law judge,^[6] who overturned the rule as an unauthorized exercise of legislative authority.^[7] This decision led to repeal of the rule and passage of the State Mangrove Trimming and Preservation Act (state act) in 1995, which overhauled the then existing statute.^[8] The crux of the state act was simple: To take power from local governments and make trimming easier. However, the 1996 amendments also strengthened trimming restrictions and penalties and returned a modicum of power to LG. However, the core of the state act remains intact.^[9]

Delegated Local Governments

The state act preempts LG from regulating mangroves, unless delegated authority by FDEP to enforce the state act.^[10] To receive such delegation, a LG must demonstrate that it has the resources to enforce the state act.^[11] To date, only seven local governments have done so: Miami-Dade, Broward, Hillsborough, Pinellas, and Sarasota counties, as well as the town of Jupiter Island and the City of Sanibel.^[12] Counties may further delegate enforcement to municipalities within their jurisdiction.^[13] However, at least in Pinellas, no municipalities appear to be interested. Once the act is delegated to a local government, the delegated LG (DLG) becomes the sole permitting authority within its jurisdiction.^[14] Significantly, DLGs can enact stricter permitting standards than those required by the state act but cannot modify any of the exemptions afforded by the state act.^[15]

DLGs are also granted express authority to institute their own training programs for professional mangrove trimmers (PMT),^[16] which are discussed further in this article. While DLGs are subject to biannual reviews by FDEP to ensure adequate implementation of the state act,^[17] in the author’s experience, DLGs enjoy a long leash. Indeed, the author is unaware of FDEP ever directly interjecting itself in a Pinellas permitting dispute or enforcement matter. (To FDEP’s credit, they have offered Pinellas support when requested.) Moreover, the delegation agreement between FDEP and Pinellas County has not been updated since it was executed in 1996,^[18] nor has FDEP expressed any interest in an update. However, while FDEP may appear content to let DLGs take the reins on mangrove regulation, courts have been quick to check DLGs that have not been properly delegated authority from FDEP.^[19]

Exemptions

Besides preempting LGs, perhaps the most significant element of the state act is the permit exemptions it affords; specifically, the “riparian mangrove fringe” (RMF) exemption. Under the RMF exemption, an owner^[20] may personally “trim”^[21] mangroves between six and 10 feet in height.^[22] However, if the owner’s shoreline exceeds 150 feet, the owner may only trim 65% of the mangroves (if the shoreline is 150 feet or less, the owner may trim 100%).^[23] If the owner retains a PMT, mangroves up to 24 feet high may be trimmed.^[24] However, only 25% of mangroves exceeding 16 feet may be trimmed annually.^[25] Finally, the trunk of the most landward mangrove must be no more than 50 feet from the trunk of the most waterward mangrove.^[26]

Before considering the dimensional requirements above, it is critical for an owner to first determine whether the owner is entitled to trim under the RMF exemption in the first place. To that end, an owner must first confirm that the mangroves lie on property owned or controlled by the owner or on abutting sovereign submerged lands (SSL).^[27] Significantly, land simply owned by a government agency does not equate to SSL; the submerged land must have been navigable when Florida joined the Union in 1845 and not lawfully alienated by the state.^[28] Indeed, if the land is owned by a government agency and “set aside for conservation or preservation,” that land may not be trimmed under the RMF exemption at all, even with verbal or written consent from the government agency owner.^[29] “Lands set as mitigation,” whether public or private, likewise may not be trimmed under the RMF exemption unless the document establishing the mitigation area provides for trimming.^[30] Even if the owner checks these proprietary boxes, he or she must also verify that the mangroves actually grow along the shoreline. Often, marshes or other wetlands bifurcate the shoreline and the mangroves, which bring the mangroves outside the scope of the RMF exemption.^[31]

Unfortunately, many owners do not do their due diligence in ensuring ownership or control. Although submerged lands ownership causes the most headaches, it is not uncommon for a third party, often a government agency, to own a narrow strip of upland along the water.^[32] This severs the ability of the upland owner to trim under the RMF exemption because the owner no longer owns or controls the property “along the shoreline.”^[33] In some cases, the government agency may not own the strip in fee simple; it may simply hold an easement interest, often right-of-way or a conservation easement. Mangroves burdened by conservation easements in particular warrant scrutiny, as mangrove trimming may not be performed within the conservation easement unless the easement verbiage expressly authorizes it.^[34] It follows that upland owners should study their plats, deeds, and site plans carefully before trimming any mangroves. If a third party-owned strip is discovered, that third party may be willing to convey a property interest that facilitates reasonable trimming.

The RMF exemption has an added wrinkle: The “RMF reestablishment exemption.” As long as the mangroves satisfy the definition of RMF,^[35] an owner may reestablish a mangrove configuration that documentation establishes previously lawfully existed.^[36] Although mangroves may be trimmed under six feet, the trimming must ultimately not result in alteration.^[37] Further, although there is no height limit on the mangroves that can be trimmed, mangroves over 10 feet must still be trimmed by a PMT.^[38] The length of the shoreline is irrelevant.

The “maintenance exemption” is similar to the RMF reestablishment exemption. The notable difference between the two is that the maintenance exemption is not hamstrung by the definition of RMF, but is hamstrung by a requirement that the proposed trimming be previously authorized by permit or exemption.^[39] Recall that the legislature did not regulate mangrove trimming until 1984. Therefore, if an owner wishes to maintain a configuration established prior to 1984, the owner must provide a permit (or proof of exemption) from a LG prior to 1984. Also, recall the (1995) state act, which was not amended since 1996, made it easier to trim. Therefore, there is generally no need for an owner to rely upon a state permit (or exemption) unless the owner resides in a DLG that has adopted more stringent permitting standards than provided for in the state act (recall that DLGs may not abrogate the exemptions provided in the state act). With all that said, in practice, the maintenance exemption is not used as a grandfathering tool. Rather, the exemption is primarily used as a mechanism to trim mangroves covered by an otherwise lawful state or DLG trimming permit that has expired.^[40]

Permits

When an owner does not qualify for an exemption, the owner must obtain a trimming permit. To that end, the state act authorizes a very specific general permit outside the jurisdiction of DLGs. To acquire this general permit, the trimming must: 1) not extend 500 feet waterward; 2) be restricted to 65% of the mangroves along the shoreline; and 3) not involve herbicide or chemical usage.^[41] Another general permit is available to clear navigation channels.^[42] Significantly, for both general permits, no more than 25% of mangrove foliage may be removed annually, and no mangrove may be reduced to less than six feet in height.^[43] Furthermore, the trimming must be conducted or overseen by a PMT,^[44] who must personally sign a notice of intent.^[45] As noted above, the configuration achieved via one of these general permits may be maintained via the maintenance exemption.

Individual trimming permits are available to owners who do not qualify for one of the two general permits. In reviewing these applications, FDEP is guided by F.S. §373.414(1) and (8).^[46] Notably, FDEP must follow the same criteria when reviewing mangrove alteration permit applications.^[47] “Alteration” means “removing, defoliating, or destroying” mangroves, whereas “trimming” constitutes everything else.^[48] But to reiterate, at least for permitting purposes, trimming, which does not qualify for one of the two general permits, and alteration are essentially treated one and the same by FDEP.

DLGs offer more flexibility than FDEP in mangrove permitting. Recall that DLGs are expressly authorized to adopt stricter permitting (note: not exemption) criteria. To that end, both Hillsborough and Pinellas: 1) prohibit mangrove trimming in colder months; 2) restrict chainsaw lubricants; and 3) mandate removal of surrounding invasives.^[49] Meanwhile, Sarasota expressly requires consistency with land use and zoning designations and restricts trimming to 250 (as opposed to 500) feet waterward.^[50] Perhaps most notably, Sanibel only allows alteration where one of four enumerated purposes is satisfied.^[51] Meanwhile, Jupiter Island’s permitting criteria mirrors the state’s.^[52] The lesson: Know where you’re trimming or altering!

Experienced environmental attorneys will immediately recognize F.S. §373.414(1)(a) as the infamous, seven-factor, public interest balancing test. F.S. §373.414(8) requires that cumulative impacts also be avoided. Collectively, these factors are very broad and grant regulators significant discretion in evaluating individual trimming permit applications. As with other individual permits, when the statutory criteria cannot be satisfied, FDEP and DLGs must consider mitigation, including cash donations, used for mangrove creation/preservation/protection/enhancement, and mitigation bank credit purchases.^[53] However, to purchase a mitigation bank credit, the impact must be within the mitigation bank’s limited designated geography service area. Indeed, it may be easier for an applicant to gain approval for a mitigation plan for mangrove trimming or alteration permits than for other state environmental resource permits (ERPs).^[54]

Enforcement

The state act is less forgiving to those who wish to mitigate as a remedy for enforcement. In fact, the regulator is unlikely to accept off-site mitigation where on-site restoration is practicable.^[55] In either case, the goal is to achieve a canopy within five years that equals the mangroves lost.^[56] If the regulator determines that both on-site restoration and off-site mitigation are impracticable, either a cash donation or mitigation bank credit purchase may be adequate. The cash donation or credit purchase must result in a created vs. affected ratio of at least 2:1.^[57]

Some context may be helpful here. In the author’s over nine years of representing Pinellas staff in mangrove enforcement matters, he has never seen a cash donation or mitigation bank credit purchase utilized to resolve a case. In fact, the author can only recall a handful of times when off-site mitigation was accepted. It follows that on-site restoration is staff’s preferred remedy, and for good reason. Foregoing on-site restoration allows a violator to benefit from the lost mangroves through, for example, an enhanced view or larger dock. Developers in particular should not be able to get away with making properties more attractive by illegally removing mangroves on-site and mitigating off-site. There are certain areas where mangroves will struggle to regrow, such as bulkheaded canals located far inland. In these rare cases, staff may agree to off-site mitigation. It should be noted that the “cramped” nature of Pinellas, the most densely populated county in Florida, makes off-site mitigation inherently difficult. Indeed, there are no mangrove credits available from mitigation banks in Pinellas. Consequently, off-site mitigation or mitigation bank credit purchases for mangrove impacts may be more common in other jurisdictions.

In addition to restoration or mitigation, the state act permits both FDEP and DLGs to pursue damages and penalties, similar to other violations of F.S. Ch. 403.^[58] Additional per stump penalties apply to repeat violators.^[59] Applicants, permittees, owners, and PMTs are jointly and severally liable for violations.^[60] Defense attorneys in particular should also be aware that the Environmental Litigation Reform Act (ELRA), which was signed into law in 2001^[61] after the state act was signed into law in 1996, may also come into play. ELRA essentially offers FDEP an administrative forum under F.S. Ch. 120 for certain defined program areas, including mangroves. Civil penalties in an ELRA action may not exceed $50,000.^[62] In fact, FDEP must use ELRA if it is only seeking penalties that do not exceed $50,000.^[63] Notably, ELRA expressly prescribes a $7,500 per violation penalty against a person who unlawfully trims or alters mangroves.^[64] Thus, if FDEP is only seeking penalties in a mangrove enforcement case, it is likely required to use ELRA.

However, as discussed above, corrective actions (restoration, mitigation) are often required for unlawful mangrove trimming or alteration. Although an administrative law judge may order corrective actions in an ELRA final order, only a court can enforce the order.^[65] Likewise, only a court can grant formal temporary injunctive relief, which may be necessary to prevent threatened unlawful mangrove trimming or alteration.^[66] Therefore, regulators should be cautious utilizing ELRA where a violator is uncooperative or unpredictable. The same concerns apply to DLGs utilizing a special magistrate or code enforcement board (magistrate) under F.S. Ch. 162, where fines and liens are the only remedies available, discussed further below.

Notably, unlike FDEP, the remedies available to DLGs are not constrained by the state act or ELRA. Although state enforcement mechanisms are available to DLGs, DLGs are also free to utilize their own enforcement mechanisms.^[67] To that end, DLGs may issue local ordinance violations in county court.^[68] However, the fine amounts for such citations are relatively low ($500 max per citation for counties),^[69] and the procedures are burdened by the rules of criminal procedure (laws of evidence apply and guilt must be established beyond a reasonable doubt). This makes a magistrate a more sensible forum for mangrove violations.

From a magistrate, DLGs with populations of at least 50,000 may seek fines up to $15,000 per “irreparable or irreversible” violation, which certainly appears to cover unauthorized mangrove trimming or alteration.^[70] They can also ask a magistrate to impose daily fines up to $1,000 ($5,000 for repeat violators) until a violator has taken steps to “come into compliance” through restoration or mitigation.^[71] If a violator refuses to comply with an order, DLGs can record the order as a lien against the “land on which the violation exists.”^[72] This verbiage is significant because a PMT normally does not own the land where the unlawful trimming or alteration occurs. This means the DLGs may not have a remedy against a PMT who does not comply with a magistrate order. Therefore, it is typically advisable to name the owner, not the PMT (if one exists), as a defendant in a magistrate case. Finally, in magistrate cases, DLGs are not bound by the formal rules of evidence^[73] and are subject to a forgiving burden of proof (preponderance of the evidence). This makes a magistrate an enticing option for DLGs. However, like an administrative law judge, a magistrate cannot force a violator to take specific action on the property, such as refraining from trimming mangroves. Therefore, circuit court, where temporary or permanent injunctive relief is available, may be the preferred forum depending on the nature of the committed or threatened violations.

A final point on enforcement for DLGs: The legislature has adopted special acts affording certain LGs special causes of action for environmental violations. For example, the Pinellas County Environmental Enforcement Act ^[74] permits Pinellas to seek $10,000 in civil penalties per offense, with each day during which the violation occurs constituting a separate offense.^[75] Notably, the act contains a provision authorizing these penalties to be recovered outside the courts through a consent order,^[76] which is staff’s preferred enforcement route. Under the act, any recovered penalties are deposited into the Pinellas County Pollution Recovery Fund.^[77]

Professional Mangrove Trimmers

Before concluding this article, a brief word on PMTs is needed. As established above, PMTs are afforded special trimming privileges and, likewise, may be held to a higher enforcement standard. The state act automatically qualifies certain occupations as PMTs: certified arborists, wetland scientists, environmental professionals, ecologists, and landscape architects.^[78] Persons who have trimmed mangroves “as part of their business or employment” may also apply to FDEP or DLGs for PMT status.^[79] To that end, DLGs may adopt their own training/qualification program (which may only authorize a PMT to operate within the adopting DLG’s jurisdiction).^[80] Like FDEP, Pinellas requires a notarized affidavit attesting to work on 10 legally authorized mangrove trimming projects, as well as knowledge of different mangrove species.^[81] DLGs may also require that any qualified PMT pay an annual registration fee and provide notification before performing any exempt trimming.^[82] Granted PMT status is subject to revocation by FDEP for any violation of the state act;^[83] DLGs may establish their own criteria for disciplining PMTs.^[84] In addition to license revocation and any other discipline, PMTs specifically are subject to separate per-stump $250 penalties for repeat violations.^[85]

This column is submitted on behalf of the Environmental and Land Use Law Section, Robert Volpe, chair, and Susan Roeder Martin, editor.