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COLUMNS
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DEP Update |
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Kelly Samek &
Amanda G. Bush
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ACF Update
State of Alabama v. U.S. Army Corps of Engineers, et al., 90-CV-1331-Bowdre
(N.D. Ala.)
Court-ordered mediation was held on December 12 and January 18 in Atlanta. The
court has extended the stay for mediation through March 30, 2007.
Southeastern Federal Power Customers, Inc. v. Luis Caldera, et al.,
1:00-CV-02975-Jackson (D.C. Cir.)
Florida and Alabama filed Appellants' Opening Brief on February 1. Oral argument
on the motion to transfer all pending federal litigation (the two aforementioned
cases in addition to State of Florida v. U.S. Fish and Wildlife Service, et al.,
pending in the Northern District of Florida, and State of Georgia v. U.S. Army
Corps of Engineers, et. al., pending in the Northern District of Georgia) to the
Multi-District Panel occurred on January 25 in Miami.
Struhs v. Wyner, Case No. 06-531 (United States Supreme Court)
Respondents T.A. Wyner and George Simon filed a civil action against the manager
of a Florida State Park and the head of the Florida Department of Environmental
Protection challenging a regulation imposing minimum clothing requirements in
Florida’s State Parks, which prevented Respondents from performing annual plays
and political performances in the nude at the park. On February 13, 2003, less
than twenty-four hours later, the district court held an emergency hearing, at
which the district court entered a preliminary injunction prohibiting
Petitioners from arresting or interfering with Respondent’s performance. After a
hearing on the merits, Respondents lost their claim for a permanent injunction
and other relief. The district court determined that Respondents were prevailing
parties because of the preliminary injunction and awarded Respondents’
attorney’s fees and costs. Petitioners appealed the finding of prevailing party
status and the award of attorney’s fees. The Eleventh Circuit Court of Appeal
affirmed.
The petition for United States Supreme Court review was granted. The questions
presented are (1) Whether the 11th Circuit decision is correct in holding that a
preliminary injunction is relief on the merits, or whether the Fourth Circuit
decision in Smyth v. Rivero, 282 F.2d 268 (4th Cir. 2002), certiorari denied by
537 U.S. 825 (2002), is correct in holding that a preliminary injunction is not
a ruling on the merits and thus cannot be the basis for prevailing party status
and (2) Whether the Eleventh Circuit was correct in affirming the district
court’s order finding that Respondents are prevailing parties when their request
for permanent injunctive relief was denied, although at an abbreviated hearing
Respondents were awarded interim relief. Oral argument is set for April 2007.
Best Diversified, Inc., et al. v. Osceola County, Florida, et al., 945
So.2d 1289 (Fla. 2006)
The Florida Supreme Court declined to accept jurisdiction of the case, letting
the Fifth DCA's opinion at 936 So.2d 55 (5th DCA 2006), stand. The Fifth DCA
determined that neither the Department's actions, nor the County's, resulted in
an unconstitutional "taking" of plaintiff's property, nor an "inordinate burden"
under the Bert Harris Act. The Department had denied plaintiff's application to
renew a general permit authorizing the operation of his facility due to the
facility's numerous violations and failure to provide reasonable assurances that
the facility would be operated consistent with Department rules.
Walton County 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. The First DCA certified, as a question of great public
importance, the question of whether the Beach and Shore Preservation Act (Part I
of Chapter 161) had been applied unconstitutionally so as to deprive 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), F.A.C. – exempting satisfactory evidence of sufficient upland
interest if the activities do not unreasonably infringe on riparian rights –
does not apply. The case is fully briefed at the Florida Supreme Court, and oral
argument is set for April 19, 2007.
Association of Florida Community Developers and Florida Home Builders
Association v. DEP, 943 So.2d 989 (1st DCA 2006)
This case involved a challenge to a proposed amendment to Rule Chapter 62-40,
the Water Resources Implementation Rule, which establishes guidance that is to
be used by the Department and Water Management Districts in the establishment of
reservations of water, in accordance with s. 373.223(4), F.S. Petitioners argued
that the rule enlarged, modified and expanded the statute and, therefore, was
invalid. The ALJ ruled in favor of the Department. Petitioners appealed to the
First DCA. On December 12, the First DCA affirmed the ALJ’s order with an
opinion holding the rule valid.
St. Johns Riverkeeper, et al v. U.S. EPA, 3:04-CV-699-J-32MCR (M.D. Fla)
St. Johns Riverkeeper filed suit against EPA alleging that it should have
disapproved, as a change to water quality standards, the Department's recently
adopted Type II Site Specific Alternative Criteria (SSAC) which sets forth the
criteria that are to be used to assure that any adopted SSAC will protect the
aquatic life designated use of the particular waterbody. Plaintiffs did not
challenge the rule at the state level. The Type II SSAC provisions were
subsequently used to establish a Dissolved Oxygen SSAC for the Lower St. Johns
River. Plaintiff's lawsuit also requested that the court enjoin EPA from
approving any SSAC based on the Type II criteria or approving any TMDL for the
Lower St. Johns River based on a Type II SSAC.
United States of America, et al. v. South Florida Water Management District
and Florida Department of Environmental Protection, et al., Case No.
88-1866-CIV-Moreno (S.D. Fla. 1988)
On October 16, the court heard oral argument on the parties’ responses to the
Special Master’s report, with the primary issues being whether the court should
enter a remedial order directing the State to implement the remedies it has
already begun to implement and whether the court should remand certain
statistical evidence to the Special Master for consideration that the Special
Master had excluded. There is no specific time for entry of a written order by
the Judge.
Florida Public Interest Research Group, et al. v. EPA, et al., Case No.
4:02cv408-WS (N.D. Fla.)
Plaintiffs allege that EPA failed to fulfill its mandatory duty to review the
Impaired Waters Rule (IWR) as a change to water quality standards. On February
15, 2006, the Federal court in Tallahassee entered an order granting EPA’s
motion for summary judgment and denying plaintiff's request for relief in all
respects. The court determined that EPA conducted a “meticulous” review of the
IWR and that the court would defer to that review.
Sierra Club v. EPA, et. al. Case No. 1:05cv00209 (EGS)
The Sierra Club alleged that EPA has regulatory jurisdiction over the issuance
of the NPDES permit for Buckeye’s pulp and paper mill in Taylor County. There is
ongoing litigation concerning the Department’s proposed NPDES permit,
administrative order and alternative dissolved oxygen criteria currently pending
before the Division of Administrative Hearings. The federal district court
recently granted EPA’s motion for summary judgment and dismissed the Sierra Club
complaint for lack of jurisdiction, the effect of which is that the Department's
intended decision to issue the permit and associated authorizations continue to
remain in the Department’s jurisdiction.
In Re: Florida Power & Light Co. West County Energy Center, Power Plant
Siting Application No. PA 05-47, DOAH Case No. 05-1493EPP
Florida Power and Light (FP&L) applied for certification to construct and
operate a new 2500 megawatt natural gas-fired power plant in Palm Beach County.
FP&L’s application also sought approval of 3300 megawatts as the site’s ultimate
capacity, with the applicant required to apply for the additional capacity in a
new certification proceeding. A certification hearing was held on September 6
and 7, 2006. Four members of the public filed a motion to intervene at the
hearing, which was denied. Twenty-eight members of the public testified in
public testimony against the project. On October 24, 2006, the ALJ issued a
Recommended Order recommending approval of the projects. The Siting Board
approved the certification on December 16, 2006.
Chapter 62-302, F.A.C. - Triennial Review of Water Quality Changes
On December 7, 2006, amendments to Chapter 62-302, F.A.C., concerning the
state's surface water quality standards became effective. The amendments were
submitted to EPA for review on December 15, but have not yet been approved.
