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Note:
Status of cases is as of September 22, 2006. Readers are encouraged
to advise the authors of pending appeals that should be included.
FLORIDA SUPREME COURT
Best Diversified, Inc., and Peter L. Huff, et al. v. Osceola
County, et al., Case Nos. SC06-1823. Petition to review
decision of Fifth DCA's reversal of award of damages for inverse
condemnation under the Bert J. Harris Jr. Private Property Rights
Protection Act to owner and operator of a construction and
demolition debris landfill that was denied permits to continue
operating the landfill due to residents’ complaints and DEP’s
finding that the operation constituted a public nuisance. 31 Fla. L.
Weekly D2143. Status: Notice of discretionary jurisdiction filed on
September 8.
Brevard County v. Stack, Case No. SC06-1616. Petition
to review decision of the Fifth DCA rejecting County's arguments
that the Bert J. Harris, Jr., Act is unconstitutional. 932 So.2d
1258. Status: Jurisdictional briefs have been filed.
Florida Department of Environmental Protection, et al. v. Save Our
Beaches, Inc, et al., Case No. SC06-1447 and 1449. Petition to
review decision of First DCA relating to DEP's final order allowing
the renourishment of 6.9 miles of beaches and dunes within the City
of Destin and Walton County. 31 Fla. L. Weekly D1173. The First DCA
certified as question of great public importance whether the Beach
and Shore Preservation Act (Part I of Chapter 161) has been
unconstitutionally applied so as to deprive the members of Stop the
Beach Renourishment, Inc. of their riparian rights without just
compensation for the property taken, so that the exception provided
in Rule 18-21.004(3), FAC, exempting satisfactory evidence of
sufficient upland interest if the activities do not unreasonably
infringe on riparian rights, does not apply. Status: Jurisdictional
answer briefs due September 25.
Advisory Opinion to the Attorney General re: Referenda
Required for Adoption and Amendment of Local Government
Comprehensive Land Use Plans, Case No. SC06-161. Request for
advisory opinion regarding proposed constitutional amendment
requiring referenda for adoption and amendment of local
comprehensive plans. Status: Court approved proposed amendment for
placement on the ballot June 22; motion for rehearing denied
September 7. 2006 WL 1699568.
FIRST DCA
Association of Florida Community Developers v. DEP,
Case No. 1D06-1425. Appeal of final order determining that DEP's
so-called Water Reservation Rule is not an invalid exercise of
delegated legislative authority. Status: All briefs have been filed;
oral argument set for October 24.
Florida Petroleum Marketers and Convenience Store Association
v. DEP, Case No. 1D06-817. Appeal of final order granting
attorneys fees because DEP was not "substantially justified" in
promulgating the contamination notification requirements in Rule
62-770(3)(b) and (4), FAC. Status: All briefs have been filed; oral
argument set for October 24.
Jonesville Properties, Inc., et al. vs. Florida Dept. of
Community Affairs and Alachua Co., Case No. 1D05-2432.
Appeal of final order determining that proposed amendments to
Alachua County comprehensive plan are in compliance. Status:
Affirmed per curiam June 30; motion for rehearing filed and denied;
mandate issued September 5. 935 So.2d 504.
SECOND DCA
Citizens for Responsible Growth, et al. v. City of St. Pete
Beach, Case No. 2D06-550. Appeal of a state court ruling
that three of four proposed revisions to the City Charter of St.
Pete Beach would not appear on the ballot in a March general
election. The proposed revisions provide for voter input into the
process for the adoption of the City's comprehensive plan or
amendments thereto. Status: Affirmed in part/reversed in part on
August 18; motion for rehearing filed and denied; mandate issued
September 7. 31 Fla. L. Weekly D2196.
THIRD DCA
Florida Keys Citizens Coalition, Inc., et al. vs. Florida
Administration Commission, et al., Case No. 3D05-1800.
Appeal from final order of Division of Administration Hearings
finding that proposed Florida Administrative Code rules regarding
the comprehensive plans of Monroe County and the City of Marathon
are not invalid exercises of delegated legislative authority.
Status: All briefs have been filed; oral argument set for September
20.
FOURTH DCA
1000 Friends of Florida, et al. v. DCA, Case No.
4D05-2068. Appeal of final order determining that proposed
amendments to Palm Beach County comprehensive plan to accommodate
the proposed Scripps biomedical campus are in compliance. Status:
Response to Court's Order requesting status of Ordinances 2004-34 to
2004-39 and 2004-63 to 2004-64 and whether appeal is moot, filed
June 5; reply filed June 23; notice of supplemental authority filed
June 28; jurisdiction relinquished to the Department of Community
Affairs on July 12 (for 120 days).
FIFTH DCA
Alfred J. Trepanier, Successor Trustee, et al. v. County of
Volusia, Florida, Case No. 5D05-3892. Appeal by owners of
oceanfront property from a summary judgment in favor of the County.
The owners had sued the County for allowing (and directing) the
public to park on property they claim they own. Status: All briefs
have been filed; oral argument set for November 7.
U.S. SUPREME COURT
Water and Sewer Authority v. Friends of the Earth, Inc.,
Case No. 06-119. Review of D.C. Circuit ruling that the word "daily"
in the phrase "total maximum daily loads" (TMDL) in the CWA means
"every day" under the plain language of the statute. Status:
Petition filed July 21.
W.R. Grace & Co., et al. v. United States, Case No.
05-1363. Appeal of Ninth Circuit decision finding mine owners liable
under CERCLA for cleanup costs incurred in response to contamination
from mining operations. 429 F.3d 1224, 61 ERC 1865 (9th Cir., 2005).
Status: Petition filed April 27; matter has been fully briefed;
distributed for conference on October 6.
United Haulers Association, Inc., et al. v. Oneida-Herkimer
Solid Waste Management Authority, et al., Case No. 05-1345.
Petition for review of a Second Circuit decision which held that the
local flow-control ordinance did not violate the Commerce Clause and
that any burden on commerce imposed by the ordinance is
“insubstantial” and not excessive. 438 F. 3d 150 (2nd Cir. 2006).
Status: All briefs filed as of July 5.
Massachusetts v. EPA, Case No. 05-1120. Appeal of D.C.
Circuit decision that EPA did not violate the Clean Air Act in
declining to regulate carbon dioxide emissions (i.e., “greenhouse
gases”) from automobiles. 415 F.3d 50, 60 (D.C. Cir. 2005). Status:
Petition granted June 26; matter has been fully briefed.
Indiana Water Quality Coalition v. EPA, Case No. 05-1095. Petition
for review of a Sixth Circuit decision rejecting a challenge to
EPA’s application of its whole effluent toxicity test standards. 411
F. 3d 726 (6th Cir. 2005). Status: Petition denied June 26.
Norman v. United States, Case No. 05-1050. Petition for review of
U.S. Court of Appeals for the Federal Circuit decision holding that
the government was not required to compensate the developers under
the takings clause of the Fifth Amendment. 429 F.3d 1081, 61 ERC
1577 (Fed. Cir. 2005). Status: Petition denied May 22.
Environmental Defense v. Duke Energy Corp., Case No.
05-848. Appeal of Fourth Circuit decision narrowing the scope of the
New Source Review/Prevention of Significant Deterioration (NSR/PSD)
air pollution construction permitting program to require EPA to
interpret an emissions increase that triggers NSR/PSD requirements
as an increase in the maximum hourly emissions rate of a plant
rather than as an increase in actual annual emissions. This
effectively ended the enforcement action brought against Duke
Energy. 411 F.3d 539, 60 ERC 1577 (4th Cir. 2005). Status: Oral
argument is scheduled for November 1.
North Dakota, through the North Dakota Department of Health,
et al. v. United States Army Corps of Engineers, et al.,
Case No. 05-628. Petition for review of an Eighth Circuit decision
holding that the Clean Water Act does not waive the federal
government’s sovereign immunity for actions taken for navigation
purposes under the Flood Control Act of 1944 and that enforcement of
North Dakota’s state water quality standards would impair the Corps’
authority to maintain navigation on the Missouri River. 421 F. 3d
618 (8th Cir. 2005). Status: Petition denied March 20.
Gerke Excavating, Inc. v. United States, Case No.
05-623. On appeal from the Seventh Circuit, Petitioner has asked the
Court to review whether Section 404 of the Clean Water Act prohibits
discharges into wetlands that do not abut a navigable river. Here,
the wetlands are drained by a ditch into a non-navigable creek that
runs into a non-navigable river and then into a navigable river. The
Seventh Circuit held that the Corps did not exceed its authority
under the Act in asserting jurisdiction over the wetlands, and that
such authority did not violate the Commerce Clause. The Court
reasoned that wetlands are “waters of the United States” within the
meaning of the Act regardless of distance from a navigable waterway,
if water from the wetlands enters a stream that flows into the
navigable waterway, and that there is no basis to interpret the
regulation as distinguishing between a stream and a ditch. 412 F. 3d
804 (7th Cir. 2005). Status: Petition granted June 26; case vacated
and remanded on July 28 for reconsideration in light of the Rapanos
decision, supra.
S.D. Warren Company v. Maine Board of Environmental
Protection, et al., Case No. 04-1527. Petition for review of
a Supreme Judicial Court of Main decision which held that the
Federal Energy Regulatory Commission may not issue operating permits
to operate dams to produce hydroelectricity absent the state’s water
quality certification as required by Section 401 of the Clean Water
Act. Lower Case No. 2005 ME 27 (CUM-04-314). Status: The Court
affirmed on May 15.
Rapanos et ux., et al. v. United States, Case No.
04-1034, and Carabell v. United States, Case No. 04-1384. Appeal of
two consolidated cases from the Sixth Circuit. Questions presented
to the court are whether wetlands adjacent to tributaries of
traditionally navigable waters are “waters of the United States”
subject to federal jurisdiction, and whether a manmade berm
separating the wetlands from the tributaries does anything to sever
this connection. The Rapanoses filled three wetland sites on various
properties without seeking a permit from the Corps and despite
receiving several cease-and-desist orders from state and federal
agencies. All three wetland sites were connected through drains or
creeks to navigable rivers and lakes. The Carabells were denied a
permit to fill a wetland located on their property, which was
connected to a lake by a series of ditches and drains but was
separated from these ditches and drains by a man-made berm. 376 F.
3d 629 (2004); 391 F. 3d 704 (2004). Status. On June19, the Court,
unable to reach a majority, issued five separate opinions that still
leaving scholars scratching their heads. The plurality's announced
rule in this case limited the phrase "waters of the United States"
to include "only those relatively permanent, standing or
continuously flowing bodies of water 'forming geographic features'"
commonly known as "streams[,] . oceans, rivers, [and] lakes.”
Judgment was vacated, and the cases were remanded to the Sixth
Circuit for reconsideration. Justice Kennedy’s concurring opinion,
which arguably represents the narrowest grounds on which the most
justices agreed, essentially held that “waters of the United States”
encompassed any wetlands with a “significant ... nexus” a navigable
water body. It is still unclear what precisely this means and how
the lower courts and the Corps will interpret this decision.
Garcetti, et al. v. Ceballos, Case No. 04-473. Appeal of
a Ninth Circuit decision upholding on First Amendment “protected
speech” grounds special whistleblower protections contained in
environmental statutes. 361 F. 3d 1168 (9th Cir. 2004). Status: The
court reversed, rejecting the employees’ First Amendment claims, on
May 30. 126 S.Ct. 1951.
FIRST CIRCUIT
United States v. Johnson, Case No. 05-1444. On remand
from United States Supreme Court for determination whether wetlands
adjacent to tributaries of a navigable river were protected by the
Clean Water Act, in light of the Rapanos decision. Status: February
13, held that wetlands were protected; June 30, petition for
rehearing en banc.
SEVENTH CIRCUIT
United States and New York v. Cinergy Corporation, et al.,
Case No. 06-1224. Interlocutory appeal of D.C. Circuit ruling
agreeing with EPA’s interpretation of section 165(a) of the Clean
Air Act under the NSR program. Cinergy argues that the regulation
does not require a permit for modifications that do not increase the
hourly emissions rate at which a plant emits pollutants, even if the
modifications increase the annual emissions rate. Note that the
Fourth Circuit accepted Cinergy’s argument in United States v. Duke
Energy, and the “circuit conflict” is now before the U.S. Supreme
Court (see above). Case No. 99-CV-01693. Status: Opinion upholding
EPA’s interpretation was issued August 17; motion for clarification
granted in part (making minor corrections) and denied in part on
September 11.
NINTH CIRCUIT
San Francisco Baykeeper et al. v. Cargill et al., Case
No. 04-17554. Appeal of decision that a man-made, bermed,
salt-processing pond which leads to San Francisco Bay was
jurisdictional because it is an "adjacent water body." Status: Oral
argument set for September 27.
Baccarat Fremont Developers v. U.S. Army Corps of Engineers,
Case No. 03-16586. Developer’s appeal of district court dismissal of
challenge to Corps permit requiring the developer to create
freshwater wetlands and maintain wetlands on the site. The court
held that the Clean Water Act does not require the Corps to show a
“significant hydrological or ecological connection” between the
wetlands and adjoining lakes and streams to exercise its authority.
Status: The Court affirmed on October 14, 2005; motion for rehearing
filed in light of the Rapanos decision, then-pending in the Supreme
Court. Rehearing and rehearing en banc denied August 3.
Northern California River Watch v. City of Healdsburg,
Case No. 01-4686. Appeal to the Ninth Circuit of a district court
decision holding that the City violated the Clean Water Act by
discharging sewage into waters of the U.S. without obtaining a NPDES
permit. The body of water in question is known as "Basalt Pond," and
is a rock quarry pit that had filled with water from the surrounding
aquifer and was located next to the Russian River. Issue was whether
Basalt Pond qualifies as waters of the U.S. Basalt Pond is separated
from the Russian River by a levee which varies between fifty and
several hundred feet in width – there is no surface connection.
Water from Basalt Pond drains into the surrounding aquifer and much
of it ends up in the Russian River. Wetlands are considered
"navigable waters" if the wetlands have a "significant nexus" to
navigable-in-fact waterways. A significant nexus exists "if the
wetlands, either alone or in combination with similarly situated
lands in the region, significantly affect the chemical, physical,
and biological integrity of other covered waters more readily
understood as 'navigable.' " Status: On August 10, the Ninth Circuit
affirmed, concluding that Basalt Pond and its wetlands do "possess
such a 'significant nexus' to waters that are navigable in fact,
because the Pond waters seep directly into the navigable Russian
River." The court based its decision on Justice Kennedy's
"significant nexus" test in the Rapanos decision (see supra), which
the Ninth Circuit concluded was the narrowest grounds on which most
justices agreed. 2006 WL 2291155.
ELEVENTH CIRCUIT
State of Alabama v. U.S. Army Corp. of Engineers, Case
No. 06-14211. State of Florida appeal of a Northern District of
Alabama ruling denying the State’s request for more water to be
diverted to the Apalachicola River from Lake Lanier and other
Georgia reservoirs in order to protect shellfish and other natural
resources in Apalachicola Bay. Status: Appeal filed August 7.
D.C. CIRCUIT
Minnesota Power v. EPA, Case No. 05-1246, and North
Carolina v. EPA, Case No. 05-1244. Various petitions challenging
EPA’s Clean Air Interstate Rule (CAIR), which was issued March 10,
2005. The CAIR implements an emissions trading system to reduce
emissions of sulfur dioxide and nitrogen oxides from power plants.
Status: Supplement to response proposing briefing format and
schedule filed by EPA September 11.
Environmental Defense v. EPA, Case No. 05-1159, and
Chesapeake Bay Foundation v. EPA, Case No. 05-1267. Various
petitions challenging EPA’s March 15 rule allowing coal-fired power
plants to avoid maximum achievable control technology (MACT)
emissions controls for mercury. Status: Proposed briefing format and
schedule was filed by EPA on August 29.
New York v. EPA, Case No. 03-1380. Challenge to EPA’s
NSR rule amendments published on October 27, 2003, which expands the
“routine maintenance/equipment replacement” exclusion from review
under the NSR/PSD programs. The rule amendments were scheduled to
take effect on December 26, 2003. Status: The court ordered the rule
amendments set aside March 17; rehearing denied June 30.
American Coke & Coal Chemicals Institute v. EPA, Case
No. 03-1039. Request for review of EPA argument that it has the
discretion to finalize rules (in this case, effluent guidelines for
iron and steel plants under the NPDES program) that are dramatically
different from what was proposed without first re-proposing the
measure for public comment. Status: Petition for review denied July
11.
Stacy
Watson May, stacy.watsonmay@hklaw.com, received her J.D. from The
John Marshall Law School in 1997. She is a senior attorney who
practices in the Jacksonville and Orlando offices of Holland +
Knight LLP.
Lawrence E. Sellers, Jr., received his J.D. from the
University of Florida College of Law in 1979. He is a partner in
the Tallahassee office of Holland & Knight LLP.
Susan L. Stephens, received her J.D. from the Florida
State University College of Law in 1993. She is Of Counsel at
Hopping Green & Sams in Tallahassee
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