The recent court decision in Johnson v. Gulf County confirmed that local governments have the power to regulate and even prevent development in wetlands, even if federal or state agencies don’t have jurisdiction over the area. This means that Gulf County was within its rights to enforce a rule in its plan that prohibits development within 50 feet of wetlands, even if the Army Corps of Engineers and the Florida Department of Environmental Protection don’t have authority over those wetlands. This case shows that local governments have a lot of authority to make and enforce rules about development in wetlands, even if state rules might seem to conflict with them. Chapter 163 and Chapter 373 of Florida law have different rules for protecting wetlands. Chapter 163 gives local governments the power to decide how to use wetlands, while Chapter 373 makes sure that any development that does happen doesn’t hurt the wetlands too much. Local governments can stop or limit development in wetlands, as long as they follow state rules for fixing any harm to the wetlands. These laws are important for protecting Florida’s wetlands as they face more pressure from development. Wetlands in Florida are important for the environment and wildlife. They provide a home for many fish and animals, help clean water, and protect from flooding. But many wetlands in Florida have been lost due to development. Florida has laws to protect wetlands and manage them through permits. The Department of Environmental Protection and water management districts are responsible for regulating and protecting wetlands. The Environmental Resource Program (ERP) gives the Department of Environmental Protection (DEP) and local districts the power to require permits and set conditions to make sure that any construction or changes to storm water systems, dams, or other water-related projects follow the law and don’t harm the environment. If someone wants a permit for these activities, they have to show that they won’t break water quality standards and won’t hurt the public interest. If they can’t avoid harming wetlands or water, they have to come up with ways to lessen the damage. There are also rules for how to measure and offset any harm to wetlands and surface waters. These rules are called the Uniform Mitigation Assessment Method (UMAM). This method is the only way to figure out how much damage is being done and how to make up for it. The 1985 Florida Growth Management Act gives local governments the power to decide how land should be used, including wetlands, based on factors like wetland ecology. The act requires local governments to create a plan for how land can be used and developed, and all development must follow this plan. Counties have the responsibility to plan for future growth, adopt comprehensive plans, and implement regulations to carry out the act. These plans must also be consistent with the state’s plan, which includes mandates to protect wetlands and natural water systems. The state plan also emphasizes conserving wetlands and preserving their environmental, economic, and recreational value. Plans must also consider factors like the area’s projected population, the availability of public services, and the need for redevelopment. Development should be directed away from wetlands and other sensitive areas, and if incompatible uses are allowed, measures to compensate for the loss of wetland functions should be considered. In simple terms, the state and local governments have different roles when it comes to protecting wetlands and water resources. The state is in charge of making sure that development projects follow environmental rules, but it’s up to the local governments to decide if those projects are the right fit for the area. This responsibility isn’t taken away by the state’s rules. Florida law allows local governments to decide what types of uses can be allowed in wetlands and how intense they can be. The law also says that local governments do not have to duplicate or go beyond any federal, state, or regional permitting programs when it comes to planning. However, the state can still make sure that local plans follow the rules for how densely populated and intense the land can be. The law also does not stop local governments from saying no to any development in wetlands, even if it means there can’t be any mitigation. So, local governments have the final say in what happens in wetlands, as long as they follow the rules. The law says that if a local government doesn’t allow development in wetland areas, then state rules about mitigating or lessening the impact of that development don’t apply. This means that Martin County can keep its policy of not allowing development in wetlands, even if the state gives a permit with mitigation requirements. So, the county can still enforce its rules about protecting wetlands. In 2004, a law called the Uniform Mitigation Assessment Methodology (UMAM) was passed. This law sets rules for how much wetland mitigation is needed when development projects impact wetlands. However, if a county has a policy that completely prohibits any development on wetlands, the UMAM rules don’t apply. This means that the county can have a policy against developing wetlands without breaking the state law. But if the county allows development on wetlands and sets up a permitting system for it, then they have to follow the state’s rules for wetland mitigation. It’s important to plan for protecting wetlands because just having permits for development isn’t enough. Permits only deal with how much damage can be done, not where and when development should happen. Planning looks at the big picture and considers future growth and community needs. If we only rely on permits, we won’t be able to protect important wetland areas. This is why local government bans on wetland development are important for protecting these important ecosystems. The restoration of the Florida Everglades is a good example of this. The Everglades in Florida have been drastically changed by human activity, leading to the loss of wetlands and natural water flow. The Comprehensive Everglades Restoration Plan (CERP) aims to restore the area by increasing water storage, restoring natural water flow, and reconnecting the ecosystem. However, development near CERP project sites may cause problems and require permits. Local governments have a strong interest in protecting wetlands and can use their authority to prevent incompatible development. State and local laws can work together to protect wetlands and restrict development in sensitive areas. Chapter 163 of Florida law says that local governments have to make sure that development doesn’t happen in environmentally sensitive areas. Chapter 373 explains how to make up for any damage to wetlands caused by development. The Florida Legislature has made it clear that local governments have an important role in protecting wetlands and has rejected attempts to stop them from making their own rules. This means that local governments should be encouraged to use their power to stop development in sensitive areas, like the Everglades, to help the environment. The Florida Department of Environmental Protection and the water management districts have responsibilities for managing wetlands and other surface water in the state. There are specific criteria and rules they have to follow, and local governments also have their own plans and policies for protecting wetlands. This passage discusses the importance of integrating water management with land use planning to protect Florida’s water resources. It mentions the Central and Southern Florida Project, which aims to restore the Everglades ecosystem. It also talks about permits for the discharge of dredged or fill material into navigable waters and references relevant legal statutes and regulations. The Corps and the South Florida Water Management District have to consider the impact on the public interest when evaluating projects in South Florida, especially in areas where the Comprehensive Everglades Restoration Plan (CERP) is being carried out. This means that if a development project could harm the environment or the public’s well-being, it could be denied. Florida’s economy depends on the health of its natural environment, including the Everglades. Local planning and zoning rules must not completely limit a landowner’s ability to use their property, as this could violate property rights laws. Courts must find a way for different laws to work together. There are specific regulations in Florida to protect property rights. Some laws have caused issues with land use, but there are ways to address them. The authors are lawyers who work to protect the environment and land use rights. They also thank students for helping with the article. This column is from the Environmental and Land Use Law Section, with Paul H. Chipok as the chair, and Gary K. Oldehoff and Kelly Samek as editors.
The Florida Bar’s rules aim to teach its members about duty and serving the public, improving how justice is carried out, and advancing the science of law.
In simpler terms: This column is about environmental and land use laws, with Paul H. Chipok as the leader, and Gary K. Oldehoff and Kelly Samek as the editors. The Florida Bar has rules that teach its members about doing their duty and helping the public, making sure justice is fair, and advancing the study of law.
Source: https://www.floridabar.org/the-florida-bar-journal/planning-and-permitting-to-protect-wetlands-the-different-roles-and-powers-of-state-and-local-government/
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