Planning and permitting to protect wetlands: the different roles and powers of state and local government.

AuthorGrosso, Richard
PositionEnvironmental and Land Use Law

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, ([section]) 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. ([section]) 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. ([section]) 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. ([section]) 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. ([section]) 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. ([section]) 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. ([section]) 161.3161(3):

It...

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