Rulemaking Update:

Environmental Resource Permit (ERP) Streamlining

     The SJRWMD began formal rulemaking in April 2004 to amend its ERP rules to reduce ERP application processing times. Four of the main parts of this rulemaking are:
 

1. Revise individual permit thresholds, so that more permits are staff-issued (increased delegation);

2. Increase permit modifications allowed by letter (expanded letter modifications);

3. Charge a fee for letter modifications; and

4. Charge a fee for missing copies of permit application in initial application submittals (5 copies are required by rule)
 

Among other things, the rule amendments would delegate to staff the authority to make decisions on the following two categories of ERP applications that are currently approved by the Governing Board as individual permits: (1) modifications to individual ERPs where the work proposed in the modification phase does not exceed the individual ERP permitting thresholds by itself; and (2) ERP stormwater applications that propose wetland stormwater management systems, or alternative treatment or design systems.

Litigation Update:

St. Johns River Water Management District v. Koontz, 861 So.2d 1267 (Fla. 5th DCA 2003)

     Koontz applied to SJRWMD for an environmental resource permit (“ERP”) to fill 3.4 acres of wetlands for a 3.7-acre commercial development. His proposed mitigation constituted preservation of on-site wetlands at a 3 to 1 ratio. SJRWMD denied the application due to insufficient mitigation and advised Koontz that additional mitigation would allow issuance of a permit. Koontz did not challenge the permit denial through Chapter 120, Florida Statutes. Instead, he sued SJRWMD in Circuit Court, claiming that the requirement for additional mitigation constituted a taking of his property. Significantly, Koontz stipulated before trial that additional mitigation would not deny him all or substantially all economic or beneficial use of the property.

     In October 2002, the Ninth Circuit Court, in and for Orange County, ruled that SJRWMD’s denial of the ERP permit constituted a taking without just compensation and “invalidated” the permit denial. The trial court remanded the matter to SJRWMD Governing Board pursuant to Section 373.617, Florida Statutes, for the Governing Board to consider the three alternatives as set forth in Section 373.617(3). The statute offers three alternatives: (1) agree to issue the permit; (2) agree to pay monetary damages; or (3) agree to modify its decision to avoid a taking. According to the statute, upon selection of one of the three choices, SJRWMD is to submit a proposed order to the trial court of its agreed-upon action within 90 days. The trial court is then to enter a final order approving the proposed order if the trial court determines the proposed action obviates the taking.

     SJRWMD appealed the trial court's decision, which was titled "Final Judgment". Koontz moved to dismiss the appeal asserting the judgment was not final since further judicial labor by the trial court was contemplated by the judgment and Section 373.617, F.S. After initially denying the motion and after the case was completely briefed, the Fifth DCA granted Koontz’s motion to dismiss, concluding the Court lacked jurisdiction because the judgment was not a final order. The Court held the judgment contemplated further judicial labor by virtue of the remand to SJRWMD under Section 373.617(3).

     As a postscript, the SJRWMD Governing Board, on remand, agreed to issue the permit for the Koontz development as originally proposed, subject to appeal of the taking issue. At a hearing on the Governing Board’s proposed action, the trial court orally ruled that the revised permitting decision was not a taking. The parties are awaiting entry of a written Final Judgment.

Miscellaneous:

Interagency Agreement:

     In May 2004, the SJRWMD Governing Board issued a system-wide consumptive use permit to the Orlando Utilities Commission (OUC) for OUC’s wellfields that are located in the SJRWMD and SFWMD within Orange County. SJRWMD’s authority to issue a CUP for that portion of OUC’s wellfield system located in SFWMD derived from a delegation included in an interagency agreement between SJRWMD and SFWMD. Section 373.046(6), F.S., authorizes such interagency agreements when the geographic area of a project crosses water management districts. The two districts may designate which district will undertake permitting. The permit application is reviewed pursuant to the rules of the designated district. An amendment to Section 373.2295 (Interdistrict transfers of groundwater) in 2003 removed interdistrict transfers within the same county from most of the permitting procedures contained in that statutory section.


Patrick W. Krechowski is an Assistant General Counsel to the St. Johns River Water Management District