ENVIRONMENTAL CONFEDERATION OF SOUTHWEST FLORIDA, INC., AND MANASOTA-88, INC., Appellants, v. STATE OF FLORIDA, and DAVID STRUHS, Secretary, Department of Environmental Protection, Appellees, 852 So. 2d 349 (Fla. 1st D.C.A. 2003) - The First DCA affirmed the Leon County Circuit Court’s dismissal of Appellants’ complaint for declaratory and injunctive relief, in which they alleged that Chapter 2002-261, Laws of Florida, violates the single subject requirement of the Florida Constitution. Chapter 2002-261 is the legislation that provided funding for Everglades restoration and revised the citizen standing provisions in section 403.412, Florida Statutes (F.S.). In a short per curiam opinion, the Court cited Tormey v. Moore, 824 So. 2d 137 (Fla. 2002), for the rule that a single subject violation is cured upon biennial readoption of the Florida Statutes, which occurred on July 1, 2003, in Chapter 2003-25, Laws of Florida. Plaintiffs had argued that because Chapter 2003-25 stated that reenactment “shall take effect immediately upon publication” of the 2003 version of the Florida Statutes, the defect could not be cured until actual publication. The First DCA held that reenactment took effect on the date the act became law, notwithstanding the above language regarding publication, because the Florida Supreme Court has construed that same language similarly. The Court went on to state that, while Appellants initiated their challenge before July 1, 2003, they failed to articulate any practical purpose that would be served by allowing the appeal to continue now that the appeal has become moot.

Enforcement Statistics - The total number of formal enforcement cases initiated by the Department during the past four fiscal years increased by 19% over the previous four fiscal years, and the assessed penalties increased by nearly $10 million during the same timeframe. While the number of state court lawsuits filed has decreased over the past several years, that decrease has been more than offset by a dramatic increase in the filing of Notices of Violation (NOVs) pursuant to the enactment of the Environmental Litigation Reform Act (ELRA) at Section 403.121, F.S. et seq. During the two years since the June 2001 enactment of ELRA, the Department has opened 186 ELRA NOV cases. The average time for resolution of initiated ELRA NOVs is just over three months compared to the historical average of more than 18 months to resolve similar cases once a complaint is filed in state court.

Everglades Phosphorus Criterion – The Miccosukee Tribe, Friends of the Everglades, Florida Audubon, National Audubon, the Everglades Foundation, Inc. Florida Wildlife Federation, New Hope Sugar Co., Okeelanta Corp., and Sugar Cane Growers Co-Op filed petitions challenging the rule adopting the numeric phosphorus criterion for the Everglades Protection Area. Additionally, U.S. Sugar and the South Florida Water Management District intervened in support of the rule. All parties have initiated discovery and have exchanged requests for the production of documents. A hearing before Administrative Law Judge David Maloney is scheduled from November 12 until December 12, 2003 in Tallahassee.


FLORIDA PUBLIC INTEREST RESEARCH GROUP CITIZEN LOBBY, INC., ET AL., VS. U.S. ENVIRONMENTAL PROTECTION AGENCY (EPA), Case No. 4:02CV408-WS – As indicated in the last Section reporter, the U.S. District Court for the Northern District of Florida granted summary judgment on May 29, 2003 in favor of EPA, finding that Rule 62-303, F.A.C, does not constitute a revision of Florida’s water quality standards. FPIRG and affiliated plaintiffs (now appellants) have appealed this decision to the 11th Circuit Court of Appeal in Atlanta. Appellants have filed their initial brief and the Department will be filing its answer brief by October 7, 2003.

CHARLOTTE COUNTY, Petitioner and GEORGE W. MULLINS, JR.; GEORGENE MULLINS HENDERSON; and MICHAEL GRAHAM MULLINS, Intervenors, vs. IMC PHOSPHATES COMPANY and DEPARTMENT OF ENVIRONMENTAL PROTECTION, DOAH CASE NO.: 02-4134 – On September 15, 2003, the Department of Environmental Protection, adopting most of the ALJ's recommended order, denied IMC Phosphate Company's application for a consolidated Environmental Resource/Wetland Resource Permit and related Conceptual Reclamation Plan (CRP) for phosphate mining in 2,200 acres in Manatee County. Known as the Altman Tract, the area encompasses 1,535 acres of uplands and 685 acres of wetlands. DEP concurred with the ultimate conclusion made by Administrative Law Judge (ALJ), Lawrence Johnston that IMC failed to provide the necessary reasonable assurances that its Modified CRP will meet all the applicable phosphate mine wetlands reclamation standards set forth in Chapter 378, F.S., and Rule 62-16C, F.A.C. DEP also concurred with the ALJ’s related conclusion that IMC failed to provide reasonable assurance that its Modified CRP, offered as mitigation to offset the adverse impacts of its proposed mining activities, will meet the mitigation requirements of § 373.414(6)(b), F.S. In addition, the recommended and final orders found that IMC did not provide reasonable assurance that it’s proposed mining activities will comply with all the applicable criteria set forth in Rule 40D-4, F.A.C., and the Southwest Florida Water Management District’s Basis of Review for Permit Applications (BOR). IMC’s basic reclamation concept for disturbed wetlands on the Tract, as described by the ALJ, is to replace an existing diverse system of high-quality wetlands with a deep freshwater marsh. The Department agreed with the ALJ that this basic reclamation concept was unacceptable and the Department found the concept to be inconsistent with Chapters 378, F.S., and Rule 62-16C, F.A.C.

Changes to Sovereign Submerged Lands (SSL) Rule - On August 12, 2003, the Board of Trustees adopted a telecommunications rule for SSL. The rule establishes criteria under Rule 18-21, F.A.C. for the placing of fiber optic and other telecommunication cables on SSL in Florida. The rule is designed to encourage the telecommunications industry to locate their lines between reef gaps to prevent further damage to coral reefs, an issue of particular importance in South Florida.