Can a Washington State statute cure Florida's local government exposure under Koontz v. St. Johns River Water Management District?

• Author: Ansbacher, Sidney F.
• Position: Environmental and Land Use Law

The Supreme Court's recently issued decision in Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586 (2013), confirms that money is property, that money can be taken, and that no one agrees what happens next. Koontz took 20 years winding through the St. Johns River Water Management District and various courts. At different times, the parties argued whether varying kinds of takings occurred, or even what test applied. In a 5-4 decision, the Supreme Court held the district's request that Koontz consider paying for certain district improvements in his basin might have constituted a coercive exaction. The majority held that monetary exactions were subject to the "rough proportionality" and "essential nexus" tests established for other development exactions by Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994) (Nollan/Dolan). The district gave that payment option as possible mitigation for expected wetlands impacts of Koontz's proposed development of his property. The Court remanded the matter to the Florida Supreme Court to sort out.

That court remanded in turn to the Fifth District Court of Appeal. A sharply divided panel decided 2-1 in St. Johns River Water Management District v. Koontz, 2014 WL 1703942 (Fla. 5th DCA 2014), that Koontz mandated an exactions takings determination. The Florida district sought review of this at the Florida Supreme Court in SC09-713 and SC14-1092. As of the writing of this article, the case lies in limbo.

This article proposes that Florida follow a Washington state statute to minimize Koontz's impact. (1) We emphasize Koontz's impact on the level of government most likely to be hit with Koontz claims, and least equipped to address them--local government. The Washington state statutory test provides them a promising model for responding to Koontz.

Florida amended its wetlands mitigation and impact standards after Koontz began his sojourn through the administrative process. The 2002 Florida Legislature adopted the Uniform Mitigation Assessment Method, or UMAM, which it codified at F.S. [section]373.414(18). That statute required a standardized methodology to evaluate how much mitigation was required to offset impacts on wetlands and other surface water. The state developed UMAM to replace less exact ranges of ratios of mitigation to impacts that state and regional permitting authorities applied in wildly differing ways during the period when Koontz first applied for his permit. (2)

The state legislature commissioned a report in 2000 that found existing ratios standards did not provide adequate guidance to permit reviewers. (3) They provided no adequate measurement of whether, and how much, wetland function was lost. The state's own assessment of its mitigation ratios program shows the shortcomings that Koontz faced. UMAM should substantially reduce the likelihood of a future Koontz issue befalling the Florida Department of Environmental Protection (FDEP) or a water management district.

Additionally, the various Florida water management districts have dramatically altered the boundaries and number of drainage basins they regulate since Koontz applied two decades ago. The new basins more closely align hydrogeological connectivity and similar functions. For example, the St. Johns River Water Management District published a Notice of Proposed Rulemaking, and approved new rules on February 12, 2002, and July 9, 2002, respectively. The amendments revised drainage basins in the Applicant's Handbook at Figures 12.2.8-1 and Appendix M, respectively titled, "Drainage Impacts for Cumulative Impacts Evaluation" and "Regional Watersheds for Mitigation Banking." The new basins are incorporated into F.A.C.R. 40C-4.09(1) (a). The purpose of the amendment was to reduce the size and increase the number of drainage basins the district regulated to increase the likelihood that mitigation would more closely connect to impacts. (4)

The OPPAGA Report and Ch. 2000-133, Laws of Florida, led to the tightening of regulatory basins. The legislation amended F.S. [section]373.414 to provide that a proposed project's impacts may be met either in the same drainage basin or outside, if the mitigation would offset the adverse impacts of cumulative impacts in the same drainage basin. The legislative mandate required the various districts to focus on both the actual impacts and mitigating "like for like." This, combined with UMAM, reduced the chances of a future Koontz by strictly constraining the scientific and geographic scope of impacts analyzed, together with better tying mitigation to those impacts.

While exaction issues still result in developer complaints, UMAM combines with more tightly drawn hydrologic basins to substantially reduce the likelihood of state and regional water district exaction-based takings exposure as in Koontz. The bigger exposure will be at the local level, where counties and municipalities lack the tools to adequately weigh wetlands impacts of development.

This article urges Florida to examine Washington's long-established developer exaction statute at 82.02.020, Revised Code of Washington (R.C.W.), as a template to guide exactions decisions. In combination with provisions in Washington's Growth Management Act (GMA), the statute requires local government to use best available science in limiting wetlands exactions to mitigate direct impacts and proportionate to those impacts. While the Washington statute limits local government taxes and fees against development, its bright-line test and established interpreting caselaw might minimize Florida's governments, courts, and private parties' uncertainty about how to implement Koontz. This is particularly true because Florida's UMAM statute governs local governments' regulation of wetlands mitigation and Florida's growth management laws mandate local government to regulate and to protect natural resources.

F.S. [section]163.3177(6)(d) (emphasis added) requires every local government's comprehensive land use plan to contain a "conservation element":

(6) In addition to the requirements of subsections (1)-(5), the comprehensive plan shall include the following elements:

(d) A conservation element for the conservation use, and protection of natural resources, in the area, including air, water, water recharge areas, wetlands, water wells, estuarine...