by Jean Sealey
Northeast Florida Builders Association
The Northeast Florida Builders Association prevailed in an important wetlands case with significant beneficial financial effects for home builders and developers.
“Like every other water management district in Florida, the St. Johns River Water Management District regulates wetlands impacts,” said Marcia Parker Tjoflat with Pappas, Metcalf, Jenks & Miller. “In reviewing proposed wetland impacts, the district requires that the impacts must be eliminated and minimized to the extent ‘practicable.’ However, that requirement is not in effect if the developer has (1) offered mitigation that more than offsets the impacts and (2) that mitigation is part of a regionally significant mitigation plan. This exemption is commonly referred to as the ‘out provision.’ ”
In April, the Sierra Club of Florida and the St. John’s Riverkeeper challenged the out provision, Tjoflat said.
The challengers argued that the out provision was an “invalid exercise of delegated legislative authority” because it was arbitrary. The challengers argued that the administrative law judge should abolish the out provision. This would require the District to force every development to eliminate wetland impacts unless it can be shown it is not practicable to eliminate those impacts.
An example of a practicable impact is a road crossing of a wetland to get to an upland that could not otherwise be accessed, Tjoflat said.
NEFBA and the Florida Home Builders Association joined with the district in defending the out provision. The provision was added to the district’s regulatory program in 1994, partially in response to requests from the regulated industry.
In the absence of the out provision, each applicant may be required to undertake an extensive analysis of the cost to the development if the wetlands were not impacted. The provision is an important tool for assuring reasonableness in the regulatory program.
The administrative law judge entered his final order in favor of NEFBA in mid-May. This means the out provision will stay in effect.
“The Sierra Club and St. John’s Riverkeeper have challenged the judge’s final order in the First District Court of Appeals,” Tjoflat said. “The appeal process will likely take about a year to complete. In the meantime, the out provision will stay in effect.”