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Misc. Wetlands Legal Issues


At the Confluence of the Clean Water Act & Prior Appropriation
Friday, 01 March 2013 00:00

Environmental Law Institute – February 2013

The Environmental Law Institute has published a report that explores the states’ dominant role in water rights and in setting and enforcing water quality standards.  The report is intended to improve comprehensive understanding, particularly among lawmakers, advocates, and state and federal agency staff, of the strength of surface water quality and quantity authorities relative to one another in the Western U.S.; the consequences of existing laws, governance structures, and practices on the success of those two programs; and opportunities to reduce adverse impacts in the future. To view report, click here.

 
Case Summary: Koontz v. St. Johns River Water Management District
Friday, 01 March 2013 00:00

By Peter Blacklock – In the Zone & Fox Rothschild, LLP – February 2013

In 1972, when Coy Koontz acquired a 14.9 acre vacant parcel of land east of Orlando, the Florida Legislature was busy enacting a series of conservation and environmental protection laws: the Land Conservation Act of 1972 (Fla. Stat. § 259), which created a program to acquire and conserve environmentally endangered lands, the Florida Water Resources Act (Fla. Stat. § 373), which granted the Florida Department of Environmental Protection and the state’s five  water management districts authority to protect Florida’s water resources, and the Florida Environmental Land and Water Management Act of 1972 (Fla. Stat. §§ 380.012 - 380.12), which established procedures for increased protection of wildlife and wilderness. For full case summary, click here.

 
Endangered Species Act and Claims of Property Rights “Takings”
Monday, 11 February 2013 16:44

By Robert Meltz – Congressional Research Service –  January 7, 2013

The federal Endangered Species Act (ESA) has long been one of the major flash points in debates over government interference with property rights. This report outlines the ESA provisions most relevant to the act’s impacts on private property and surveys the major ESA-relevant principles of Fifth Amendment takings law. The Takings Clause of the Fifth Amendment promises “just compensation” when government actions “take” property.

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Implications to Floodplains and Wetland Managers of Arkansas Game and Fish Commission v. United States

By Jon Kusler, Esq., – Association of State Wetland Managers – December 2012

On December 4, 2012 the U.S. Supreme Court issued a unanimous decision with impact on how government agencies at all levels of government will need to address flooding. See Arkansas Game & Fish Commission v. United States, U.S., No. 11-597, reversed and remanded 12/4/12. The Court held that government flooding of lands need not be permanent to be a Fifth Amendment “taking” of property without payment of just compensation. Governments have long been held liable for long duration and/or repeated flooding under certain circumstances. So, the decision is to a considerable extent consistent with existing law. But the ruling of the case is not necessarily confined to long duration or repeated flooding. To read full paper, click here.

 
Fed. Dist. Court in NY Finds Failure to Pursue Article 78
Tuesday, 29 May 2012 17:43

By Patricia Salkin – Commercial Appraiser – May 20, 2012

The plaintiff in the case owns property in the town of Brookhaven on which he has a house, a pool, and various other buildings. The plaintiff sought approval from the town to construct three new structures, to legalize a few structures already built, and to perform an expansion of his house. After hearings and testimony, the town granted plaintiff’s application, subject, however, to the issuance of a wetlands permit. Seeking to set aside the approval, plaintiff’s neighbors filed an Article 78 petition in the state trial court, which was largely denied. On appeal, the appellate court reversed and vacated the variances. Meanwhile, the plaintiff’s wetlands permits were suspended during the initial action but were ultimately issued before the Appellate Division’s decision. The permits were issued with conditions, however, many of which would decrease the value of the property. For full blog post, click here.

 
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