ELULS.orgThe Environmental and Land Use Law Section of The Florida Bar
Section Reporter

April 2008

COLUMNS  
     

ELULS.org  DEP Update
  Amanda G. Bush & Kelly Samek

      

ACF Update

Settlement meetings were scheduled for mid-February in Alabama.

In the D.C. litigation, the United States Court of Appeals for the District of Columbia Circuit reversed the lower court’s approval of the settlement agreement which had been entered into between Georgia, the U.S. Army Corps of Engineers and certain power producers.  The D.C. Circuit concluded that, on its face, the agreement’s reallocation of water storage space in Lake Lanier constituted a major operational change, thus violating the Water Supply Act, 43 U.S.C. § 390b(d).  This appellate court decision obviates the need for NEPA review of the invalidated settlement agreement.  The parties have forty-five days to file a petition for rehearing.

The Corps provided notice that it will begin updating the water control manuals for the ACF Basin, a process that the Corps anticipates will take approximately three years to complete.

Mid-Chattahoochee River Users v. Fla. Dep’t of Envtl. Protection, 966 So.2d 967 (Fla. 2007); No. SC07-520

On September 4, the Supreme Court of Florida declined to accept jurisdiction to review the decision of the First District Court of Appeal (948 So.2d 794) in this case.  In the Mid-Chattahoochee River Users decision, the First District confirmed that allegations of economic interest alone do not suffice to establish third-party standing to challenge the denial of an environmental resources permit (this case involved a joint permit and consent to use sovereign submerged lands, to dredge the Apalachicola River and place spoil material on the river banks).

Potter v. Kennedy and DEP, 967 So.2d 239 (Fla. 1st DCA 2007)

On August 15th, the Third DCA issued an opinion affirming the Department’s final order dismissing Potter’s petition for lack of standing.  In this permitting case, Potter wanted to challenge the exemption letter issued to his neighbor, Kennedy, to install a boat lift on his existing dock.  There is an enforcement case below involving the same parties and dock.

DCA v. City of Weston, DOAH No. 07-2299GM

The Department was granted intervention into the administrative litigation regarding the City of Weston’s proposed amendment to their comprehensive plan.  The amendment would effectively block implementation of the C-11 CERP/Accerler8 project.  DCA objected to the amendment and SFWMD and the Regional Planning Council have also intervened in support of DCA.

Florida Power & Light v. DEP, et al, 970 So.2d 401 (Fla. 3rd DCA 2007)

On November 7th, the Third DCA affirmed the Department’s Final Order and declared the rule valid.  FPL had appealed the Final order regarding the Department’s Clean Air Interstate Rule (CAIR).  The challenged provisions were exactly the same provisions adopted by EPA in both their model CAIR (model rule was developed for states to use to ensure consistency among states participating in the cap-and-trade program) and in the EPA federal implementation plan (FIP), which would take effect in Florida if Florida did not adopt a rule in response to the CAIR.  Florida is required to submit a state implementation plan revision to EPA indicating that it has adopted all necessary rules to implement all the emissions reduction requirements of CAIR. 

Enforcement Cases

DEP v. Jimmie Crowder Excavating and Land Clearing, Inc.

In operations at the Big Buck Mine in Franklin County, the Respondent dredged 32 acres of jurisdictional wetlands without a permit, discharged industrial wastewater from the site during mining operations, and failed to notify the Department of its mining operations at the site.  The Respondent agreed to a Consent Order that requires them to pay $427,000 in civil penalties, restore the damaged wetlands and conduct offsite mitigation, provide financial assurance for the restoration and mitigation, provide a conservation easement on all wetlands on the site, and design and implement an environmental management system for the company’s operations.

DEP v. United States of America/Defense Logistics Agency

Consent Order with 14 Department of Defense facilities (Air Force, Navy, Marine, and Coast Guard) citing current compliance violations and creating a compliance plan for anticipated missed deadlines for storage tank updates.  The facilities are located throughout the state and include Homestead, Tyndall, Jacksonville, Eglin, MacDill and Hulbert Air Force Bases; Mayport Naval Station; Jacksonville Fuel Depot; Jacksonville, Panama City, and Key West Naval Air Stations; Blount Island Marine facility; Destin Coast Guard facility; and Port Tampa Air Force facility.  A draft Consent Order has been presented to DLA and a meeting of all the parties is being set in Washington DC in March.

Mulberry Acid Spill

The Trustees (DEP, NOAA) and Hillsborough County EPC have reached agreement on restoration projects in Tampa Bay to compensate for damages to estuarine resources caused by the Mulberry process water spill in 1997.  The projects include mangrove enhancements and shoreline restorations at MacDill AFB and oyster reef creation on two islands in Tampa Bay.  Identification of restoration proposals for the freshwater damages, including the nutrient damages is proceeding and should be completed soon.

DEP v. Bob Allen

A Partial Satisfaction of Judgment was worked out with Bob Allen and the Trust for Public Lands (TPL) allowing the sale of a portion of Mr. Allen’s property to TPL.  In exchange, Mr. Allen signed an Amended Consent Final Judgment and a Trust Agreement requiring Mr. Allen to deposit $200,000 from the proceeds of the sale of the property to TPL into a trust to be held by the trustee, Wakulla Bank, until Mr. Allen completes all corrective actions required under the Amended Consent Final Judgment.  The estimated cost of the corrective actions is $100,000.  The closure on the sale of the property to TPL occurred December 18th and the $200,000 in financial assurances has been deposited in the trust account with Wakulla Bank.

Jerry Potter v. Monte Kennedy and DEP, Case No. 3D07-639 (Fla. 3rd DCA 2008)

On January 23, the Third DCA per curriam affirmed the Department’s final order which dismissed Potter’s petition for lack of standing.  Potter’s petition challenged a consent order that resolved a violation of filling a wetland without authorization from the Department.  The issues on appeal were (1) Potter’s standing, (2) whether the Department correctly determined that Potter did not have an extra five days to respond to the Department’s Motion to Relinquish Jurisdiction where the ALJ’s order specified when filing of Potter’s response was required, and (3) whether the ALJ properly reviewed Potter’s motion for disqualification.






 

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