News Column

Supreme Court Delivers Blow to Wetlands Protection

June 26, 2013
Sawgrass prairie in the Everglades (photo: moni3, Creative Commons)
Sawgrass prairie in the Everglades (photo: moni3, Creative Commons)

The U.S. Supreme Court gave the family of a Central Florida landowner -- as well as property owners and developers across the state and country -- a significant victory on Tuesday with a ruling that stands to make it tougher and more expensive for government agencies to protect the nation's dwindling wetlands.

In a 5 to 4 decision, the court found that the St. Johns River Water Management District had imposed excessive demands on Coy Koontz Sr., who was denied a permit to build on a 15-acre plot outside of Orlando unless he offset or "mitigated" for paving over wetlands by restoring wetlands owned by the district several miles away.

Koontz died several years ago but his son, Coy Koontz Jr., said the family was ecstatic at winning a land-use legal battle dating back nearly two decades and giving other landowners "a bigger stick" to fight similar cases in the future.

"As my wife said, it certainly vindicates my father's decision to take this fight on," Koontz said during a media conference call organized by the Pacific Legal Foundation, a private property rights advocacy group that represented the family in the case.

Foundation attorney Paul Beard said the ruling would help protect landowners and set a higher bar for government regulators. "Anyone who owns a home or business and wants to make use of it, they will no longer be subject to willy-nilly extortion demands from permitting agencies," he said.

But environmentalists, echoing dissenting justices, also warned that the ruling could weaken or undermine wetlands protection laws and other land-use regulations. Similar off-site "mitigation" agreements have long been an important tool for federal, state and local regulators trying to enforce a national "no net loss" of wetlands policy established by President George H. W. Bush in 1988.

The case started in 1994 when Koontz applied to dredge and fill 3.7 acres of his land while preserving the rest of the tract in Orange County's Econlockhatchee River basin. The district rejected his plan, instead giving him the option of building on one acre or paying to restore district-owned wetlands several miles away to compensate for the environmental damage of plowing under wetlands on his own land.

Koontz sued instead, arguing the district's demands constituted an illegal "taking" by denying him use of his land without fair compensation. He won a $376,000 award at a trial court level but the Florida Supreme Court overturned that decision in 2011, accepting the district's argument that nothing had actually been taken from Koontz since he retained ownership of the land.

On appeal, the federal high court found the district actions violated Koontz's property rights.

Justice Samuel Alito, writing for the conservative majority, said the district over-reached, failing to meet two key tests established in earlier rulings requiring agencies to show a "nexus" and "rough proportionality" when demanding that a property owner take actions or pay for outside work, such as wetlands mitigation or road widening, in order to obtain a permits.

The case, he wrote, underlined the "risk that the government may deploy its substantial power and discretion in land-use permitting to pursue governmental ends that lack an essential nexus and rough proportionality to the effects of the proposed use of the property at issue."

Justice Elena Kagan, in a dissenting opinion for the court's four liberal justices, agreed regulators should properly justify demands but that shouldn't rule out requiring landowners to pay for mitigation work as part of getting a permit.

The majority ruling, Kagan wrote, could reduce government flexibility, expose local governments to a new slew of takings cases and force courts to sign off on everyday zoning and land-use decisions.

"The boundaries of the majority's new rules are uncertain," she wrote. "But it threatens to subject a vast array of land-use regulations, applied daily in states and localities throughout the country, to heightened constitutional scrutiny."

The array of briefs filed in the case reflected the high stakes. They came from the Obama administration, environmental groups like Audubon and builders groups like the National Association of Home Builders.

Julie Hill-Gabriel, Audubon's director of Everglades policy, said it will take some time to determine how agencies respond to the ruling but suspects that, at the very least, it would reduce their flexibility.

Miami attorney Kerri Barsh, a land-use lawyer for Greenberg Traurig who represents rock-mining interests, said she did not believe the ruling would have any sort of chilling effect on regulators but it could level the playing field by opening the door for landowners to file "takings" challenges even before permits are formally issued.

She said it also raises questions about the future of mitigation banking, a common practice in South Florida where developers pay to restore wild tracts that are often miles or even counties away from their projects.

Patrick Gillespie, a spokesman for the Florida Department of Environmental Protection said the decision "clarified the constitutional protections that must be afforded to landowners" and said the agency would work with water districts to ensure legal issues would be addressed.


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Source: Copyright Miami Herald (FL) 2013

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