|
FLORIDA’S 404 PROGRAM LITIGATION UPDATE:
THE APPEAL HAS BEEN EXPEDITED
| |
|
The U.S. Court of Appeals for the District of Columbia granted Florida’s request for expedited proceedings in consolidated cases regarding its assumption of jurisdiction under Section 404 of the Clean Water Act. This expedited schedule comes as the first good news for Florida since the District Court vacated its assumption program and sent jurisdiction back to the U.S. Army Corps of Engineers (“ACOE”).
Section 404 regulates discharges of dredge or fill material into waters of the United States (“WOTUS”), including wetlands. While the ACOE typically has jurisdiction over these activities, Section 404(g) provides a mechanism for states to apply to the U.S. Environmental Protection Agency (“EPA”) to assume control of the Section 404 regulatory program over non-navigable WOTUS in that state. In December 2020, the EPA approved Florida’s Section 404 program, one of only three such programs in the country and the first in decades. The approval was promptly challenged by multiple environmental organizations.
On February 15, 2024, the District Court for the District of Columbia ruled in favor of the plaintiffs and vacated EPA’s approval of Florida’s 404 Program on Endangered Species Act (“ESA”) grounds. The ESA prohibits the unauthorized “take” (e.g., death, harm, harassment) of endangered or threatened species without appropriate authorization. One way to authorize “take” is through Section 7 of the ESA; this section requires federal agencies to consult with the appropriate federal wildlife service, depending on the species, if action they take may affect federally listed species. If that effect is likely to be adverse, the service must prepare a biological opinion. If take is reasonably certain to occur, they must also prepare an incidental take statement authorizing a specified amount and extent of “take” and containing measures and conditions to offset the impact of the take.
The District Court held that the Programmatic Biological Opinion and Incidental Take Statement the U.S. Fish & Wildlife Service (“USFWS”) issued for EPA’s approval of Florida’s 404 Program did not comport with ESA requirements for such documents. This programmatic document had the effect of shielding a permittee from ESA take liability if the permittee followed the permit conditions the USFWS put into the permit. The District Court held that the Programmatic Biological Opinion and Incidental Take Statement violated the ESA for lack of specificity, such as failing to identify which and how many species would be harmed. The District Court vacated Florida’s 404 Program prospectively as to all pending and future permit applications, effective immediately. Florida sought—and the District Court denied—a stay of the ruling, given the disruption it would cause the regulated community. The Section 404 program is back in the hands of the ACOE for all WOTUS in the state.
Florida and the EPA have appealed the vacatur in April (Center for Biological Diversity v. Regan, 2024 WL 1602457 (D.D.C. Apr. 12, 2024)) to the U.S. Court of Appeals for the District of Columbia and requested that the appeal be expedited to minimize disruption. In late June, the Court granted the request and set an expedited briefing schedule. Initial briefs will be filed by September 16, with reply briefs due in December and final briefs in January. Amici curiae briefs in support of the appellants must be filed no later than September 23, with no provisions for amici curiae to file in support of appellees. Oral argument will be set at a later date.
| |
|
Sheetz v. Cnty. of El Dorado, California, 601 U.S. 267 (2024).
Takings Clause Does Not Distinguish Between Legislative and Administrative Land Use Permit Conditions
A California landowner challenged a traffic impact mitigation fee imposed by the local government as a condition of issuing a building permit for a single family residence on his property. The fee was part of a “General Plan” enacted by the local government to address increasing demand for public services and utilities, but was not based on the costs of traffic impacts specifically arising from the landowner’s development. The lower court ruled against the landowner, finding that the permit condition did not constitute an unconstitutional taking in violation of the 5th Amendment because the fee was legislative in nature. The U.S. Supreme Court reversed, reasoning that a local government’s decision to withhold or condition a building permit on matters not related to its legitimate land use interests amounts to extortion regardless of the mechanism by which the condition is imposed. In so doing, the Court held that the Takings Clause does not distinguish between legislative and administrative land use permit conditions.
| |
Loper Bright Enterprises v. Raimondo, Slip Op. No. 22-451 (June 28, 2024).
Courts May Not Defer to Agency Interpretation Where Statute Is Ambiguous
Loper Bright Enterprises and other fishermen within the New England Fishery Management Council (NEFMC) are subject to the Magnuson Stevens Act (Act), pursuant to which fishery management councils are required to develop fishery management plans (FMPs) to protect fish stocks and ensure the sustainability of the fishery. The Act states that an FMP may require observers onboard fishing vessels to ensure compliance with the FMP and explicitly lists three groups of vessels required to cover the cost of the observer. The National Marine Fisheries Service (NMFS), which implements the Act, interpreted this provision to allow the NEFMC to charge additional categories of vessels with the cost of the observer if NMFS determines that an observer is required but government funding is not available. Plaintiffs challenged this interpretation, arguing that the Act does not authorize NMFS to mandate their vessels pay for observers. The U.S. Supreme Court exercised jurisdiction on the limited issue of whether the so-called Chevron deference doctrine should be applied when evaluating agency interpretation of the FMP. The doctrine, named for Chevron U.S.A. Inc. v. Natural Res. Defense Council, Inc., requires courts to defer to an agency’s reasonable interpretation where a statute is ambiguous or silent on a specific issue. Ultimately, the Court overturned Chevron, holding instead the federal Administrative Procedure Act entrusts courts with independently determining whether an agency has acted within its delegated statutory authority and that courts may not defer to the agency’s interpretation simply because the statute is ambiguous. However, the Court left in place the related Skidmore doctrine, which permits courts to use agency interpretation to inform judicial interpretation of statutes where that interpretation is based on facts within the agency’s area of expertise.
| |
|
Lee County v. Dean Wish, LLC, 381 So. 3d 674 (Fla. 6th DCA Mar. 8, 2024).
Sixth DCA Remands Failed Bert Harris Act Claim to Consider Fee Award
A developer challenged Lee County’s denial of its development order application by submitting a notice of claim under the Bert Harris Act (Act), which provides a limited cause of action for property owners against a governmental entity that “inordinately burdens an existing use or vested right to specific use of real property.” After rejecting a pre-suit settlement offer from the County, the developer filed an action in circuit court under the Act. While the case was ongoing, the developer sold the subject property at auction. Subsequently, the trial court granted summary judgment in favor of the County on the grounds that the developer no longer qualified as a property owner within the meaning of the Act, and the developer filed an appeal. In the initial appeal, the Second DCA upheld the trial court’s decision and the County filed a motion to recover appellate attorney’s fees and costs under the Act’s provisions allowing governmental entities to recover where a claimant unreasonably rejects a pre-suit settlement offer and the government prevails in the action. The Second DCA denied the motion. The County then filed a motion for attorney’s fees with the trial court seeking to recover its fees and costs prior to the appeal. The trial court denied the motion, holding that the Second DCA’s decision denying appellate attorney’s fees mandated denial of its trial court attorney’s fees. The County appealed this decision to the newly established Sixth DCA. On appeal, the Sixth DCA reversed, finding that the Second DCA’s order denying appellate attorney’s fees left open the possibility for the County to recover its fees and costs prior to the appeal, and remanded for new hearing.
| |
|
Susan Stephens
Tallahassee
Shareholder
850-354-7605
Email | View Bio
| |
Susan's Practice: Susan is Board Certified in State & Federal Government & Administrative Practice by The Florida Bar. She has 30 years of experience practicing environmental & natural resource and administrative law, including rulemaking practice and procedure and administrative litigation. Her practice focuses on balancing property and resource use with competing private, governmental and citizen interests. Susan also represents clients in matters related to resource extraction, wetlands, mitigation banks, agritourism, wastewater, submerged lands, and protected wildlife. She has extensive experience assisting in the development of Florida’s major environmental policy and regulatory initiatives and is skilled in defending state and federal environmental permits against both administrative and judicial challenges. | |
|
Understanding Changes to Florida's Stormwater Management Rules Podcast
In a move that has implications for the regulated community state-wide, Governor DeSantis has signed SB 7040, ratifying rules that require most new developments to significantly reduce nutrient levels in their stormwater discharge. This in turn means substantially changing how—and where—stormwater systems are designed and operated. The stormwater rules became effective upon the Governor’s signature on June 28, meaning all applications for new permits or major modifications of existing permits must now comply with the new nutrient rules unless the application is deemed complete (all information requests satisfied) before December 28, 2025. Susan Stephens partnered with Kimley-Horn to produce a two-part video outlining the changes and what the new rules mean to developers.
| | |
|
|
Wetlands Law and Policy: Understanding Section 404, Second Edition
By Susan Lynne Stephens, Kim Diana Connolly, and Sarah P Jarboe
Susan co-authored and updated the Second Edition of Wetlands Law and Policy, published by the American Bar Association. This book is a comprehensive guide to the Clean Water Act's Section 404 permitting program, written by experts in the area of federal wetlands regulation and from all professional viewpoints.
Click here to learn more.
| |
|
Thank you for your support and trust. Because of you, we are proud to announce that we have been ranked in the 2024 edition of Chambers USA.
Chambers USA is a branch of Chambers & Partners, a highly regarded global publisher of directories that ranks the world’s top lawyers and law firms. Rankings are based on extensive research and client and peer interviews conducted by Chambers’ team of researchers.
| |
|
|
Recognized Practice Areas
Recognized Attorneys
-
Reggie Bouthillier | Environment (Florida - Band 2); Real Estate: Zoning/Land Use (North & Central Florida - Band 1)
-
Jeffrey Collier | Environment (Florida)
-
Jacob Cremer | Environment (Florida); Real Estate: Zoning/Land Use (North & Central Florida - Band 2)
-
Carl Eldred | Environment (Florida)
-
Nicole Neugebauer MacInnes | Real Estate: Zoning/Land Use (North & Central Florida - Associate to Watch)
-
Erin Tilton | Real Estate: Zoning/Land Use (North & Central Florida - Up and Coming)
| |
We frequently collaborate with other Attorneys & Specialists statewide in a multidisciplinary approach to address all legal and business issues in a matter. | |
|
*Ken Metcalf, David Smith, Tina Ekblad, Cynthia Spidell, Chris Smith, Shawn Halphen, Roger Houle, Yuliya Olvy and Anastasia Barnes are not attorneys and are not authorized to practice law.
Ken, Tina, David, Cynthia and Anastasia are highly experienced planners. Ken, Tina and Cynthia are AICP certified.
Chris and Shawn are highly experienced GIS analysts.
Roger and Yuliya are highly experienced real estate analysts.
Special thanks to our law clerks who assisted in the drafting of this alert:
- Joseph Myers: Rising third year Juris Doctor Candidate at Stetson University College of Law.
- Gregory Short: Rising third Juris Doctor Candidate at the University of Alabama School of Law.
| |
The information provided in this email does not, and is not intended to, constitute legal advice; instead, all information in this email is for informational purposes only. Information in this email is general in nature and may not constitute the most up-to-date legal or other information. Readers of this email should contact us or an attorney of their choice to obtain advice with respect to any particular legal matter. No reader of this email should act or refrain from acting on the basis of information in this email without first seeking legal advice from counsel. Only your individual attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation. This email does not create an attorney-client relationship between the reader and the authors of the email or this law firm. | |
|
About Stearns Weaver Miller
Stearns Weaver Miller is a Florida-based law firm with more than 150 attorneys and offices in Miami, Coral Gables, Fort Lauderdale, Tampa and Tallahassee. For over 40 years, our multidisciplinary team of attorneys and professionals have worked collaboratively to help our clients understand and resolve complex legal issues and disputes. For more information, please visit stearnsweaver.com.
| | | | |
