Law Review and other Legal Articles
2003
Water, Water Everywhere?
Part II
by
Joëlle Hervic
Volume LXXVII No. 1, January 2003
Page
49
In 1972, Florida enacted the Florida
Environmental Land and Water Management Act, the Florida Water
Resources Act, 2 and the Land Conservation Act,3 thereby
becoming one of 11 growth management states.4 While these statutes
provide that regional and state issues be considered in land use and development
issues, there is no linkage between land use and water use, with the exception
of taking into consideration current water facilities as a concurrency issue.5
California has taken a lead by introducing such a linkage. "For the first
time in California's history, statewide government policy has linked land-use
and growth issues to water supply [with the passage of a law which requires
developers] to prove there is a 20-year supply of water before they are
given permits to build subdivisions with more than 500 units."6
There are no positive indications that Florida will follow California's lead in
taking such a step. A coordinator with the South Florida Regional Planning
Council indicated that while Florida land management and water agencies were
aware of the California decision, a bill considering linkage that was proposed
in Florida's previous legislative session did not pass.7 He indicated
that it "would be easy for the Regional Planning Councils to support this
measure," were it to pass.8
© 2001 The
Florida Bar Journal
Related
Article
Water, Water Everywhere Part I (December 2002)
2002
Water, Water Everywhere?
Part I
by
Joëlle Hervic
Volume LXXVI No. 11, December
2002
Page 78
Florida's once seemingly inexhaustible water resources are being
compromised and diminished as a result of increased demand, and a lack of
formalized coordination and planning between planning authorities and water
management districts. Florida's replumbing efforts, in the form of the
Comprehensive Everglades Restoration Plan (CERP), are insufficient on their own
to address the threat to water and the environment, which ultimately threatens
the habitability of Florida. This article will identify some of the problems and
obstacles to achieving a healthy environment in Florida, particularly as they
relate to water resources, and will examine the existing legislative and
regulatory framework applicable to water resources and water delivery, and
proposals that have been put forward to address Florida's future development and
water management.
© 2001 The
Florida Bar Journal
Related
Article
Water, Water Everywhere Part II (January 2003)
2001
Implementing Everglades Restoration
by Mary
Doyle ( Fall 2001 )
Volume 17 Land Use No. 1 (Doyle) pdf format
I am going to talk about
Everglades restoration this evening, dividing my
talk into two parts. First, I want to offer a few
reflections on the passage of the Everglades authorization in the
last session of the U.S. Congress. What lessons did we learn about
the future of the restoration effort from the arduous experience of
seeing the legislation passed? Second, I will commend three issues
worth watching closely over the next period as we seek to assess
how effectively the Everglades restoration plan is working.
* The author delivered this speech to the University of
Florida College of Law PIEC on March 23, 2001.
** Professor of Law, University of Miami.
© 2001
FSU
Journal of Land Use and Environmental Law
Related link
Volume 17
Fall 2001 Number 1
TRIBUTE TO THE ACHIEVEMENTS OF PROFESSOR FRED P. BOSSELMAN
Translating Science Into Law: Phosphorus Standards in
the Everglades
by Keith Rizzardi ( Fall 2001 )
Volume 17 Land Use No. 1 (Rizzardi) pdf format
Throughout
the twentieth century, the United States Army
Corps of Engineers (hereinafter the "Corps"), the State of Florida,
and the South Florida Water Management District (Water
Management District or District), a regional governmental agency
serving as local sponsor to the Corps, constructed and operated a
massive network of water management structures throughout
southern Florida. The Central and Southern Florida Flood Control
Project (C&SF Project), as the system became known, included over
1,200 miles of canals, pump stations, and other structures that
drained wetlands and diverted waters to provide flood control and
water supply for the people of southern Florida.1 Unfortunately, the C&SF Project also had
significant detrimental effects on the
environment, especially to the water quality in the Everglades.
* Keith W. Rizzardi (J.D., University
of Florida; M.P.A., Florida Atlantic University;
B.A., University of Virginia) is an attorney for the South Florida Water
Management District, where he practices
environmental and administrative law. A certified ecotour guide in Palm
Beach County, he has authored numerous articles on the Everglades
and the Endangered Species Act and served as a
pro bono research assistant to the 1998 Florida Constitution
Revision Commission. Any opinions expressed in this article are
solely the author’s and do not reflect the
official positions of his employer.
© 2001
FSU
Journal of Land Use and Environmental Law
Related link
Volume 17 Fall 2001 Number 1
TRIBUTE TO THE ACHIEVEMENTS OF PROFESSOR FRED P. BOSSELMAN
The
Miccosukee Indians and Environmental Law: A Confederacy of Hope
By
William
H. Rodgers, Jr.
August 2001
31 ELR 10918
pdf format
Two legal orphans have found each other: The
older one is "Indian Law," a confused, embarrassing, and twisted
body of legal rules that "explain" the relationships between the
United States and its native peoples. The newer one is:
"Environmental Law," a complex and jumbled stew of cases and
statutes that "prescribe" proper behavior between modern
Americans and the natural world. Both these children of the law are
suspected of subversion - the one is tainted by advocates of separate
sovereignties - the other by critics of the American way of life.
For Native Americans and environmentalists, their recent legal merger is a
confederacy of hope and opportunity and of revival - for the tribes
themselves and for others in the world who want to save parts of nature
that are left. The tribes are senior partners in this native-enviro
confederacy. This Article examines what they bring to the alliance
in the context of the efforts of the Miccosukee Tribe to preserve the
Everglades.
© 2001 ELR
Alligators
and Litigators :
A Recent History of Everglades Regulation and Litigation
by Keith W. Rizzardi
Volume
LXXV, NO. 3 March 2001
To many Florida lawyers, litigation in the Everglades seems as old as
the Everglades itself. Its history can be traced back to the 1800s when
Hamilton Disston and Henry Flagler were draining, dredging, and filling
Florida's land while fighting in the courts with shareholders,
speculators, and state land administrators. The modern history
of litigation in the Everglades is dominated by agricultural interests,
environmental interest groups, the Miccosukee Tribe of Indians, and state
and federal agencies. Along the way, important precedents have been
created, affecting the Everglades as well as Florida administrative and
environmental law in general.
© 2001 The
Florida Bar Journal
2000
Ecosystem Management in the Everglades
Prof. Alfred R. Light, St.
Thomas University School of Law
14 Nat. Resources & Env"t ___ (2000).
1999
ST. Johns River Water Management District v. Consolidated-Tomoka Land Development Co.: Defining Agency Rulemaking Authority Under The
1996 Revisions To The Florida Administrative Procedure Act
By Martha C. Mann
In 1996 the passage of the much-anticipated amendments to Florida's
Administrative Procedure Act (APA)[1] set the stage for a notable controversy surrounding
the authority of state administrative agencies to promulgate rules. The amendments
decidedly changed the prevailing standard for determining whether the Florida Legislature
had properly delegated authority to administrative agencies. The revised APA rejected the
long-applied standard that an administrative rule would be deemed valid if it was
"reasonably related to the purposes of the enabling legislation and [was] not
arbitrary or capricious."[2] The revised statute required more in that "[a]
grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt
a rule; a specific law to be implemented is also required. An agency may adopt only rules
that implement, interpret, or make specific the particular powers and duties granted by
the enabling statute."[3]
© 1999 Florida State University Law Review, Volume 26, No. 2 (Winter 1999)
Go to article
1998
Environmental Law
W.
Scott Laseter
Perhaps in recognition of the growing prevalence of environmental issues in
the day-to-day practice of law, this Article departs from the two-year survey
period of its predecessors1 by covering only decisions handed down
during 1997. Nonetheless, the survey period saw several interesting cases reach
the Eleventh Circuit, including the appeal of a sua sponte assault on the
constitutionality and retroactive application of the Comprehensive Environmental
Response, Compensation, and Liability Act2 and an effort to use the
Migratory Bird Treaty Act to block timber harvest in a national forest.3
Further, the survey period saw the continued emphasis on citizens' suits, the
use of the Environmental Protection Agency's enforcement power to repair
wetlands, and the use of criminal provisions to enforce federal environmental
law.4
In terms of organization, this Article begins with a discussion of the
decision under the Comprehensive Environmental Response, Compensation, and
Liability Act ("CERCLA"),5 then reviews three cases decided
under the Clean Water Act ("CWA"),6 and concludes with a
discussion of the Eleventh Circuit's first opinion on the Migratory Bird Treaty
Act ("MBTA").7
© 1998 Mercer Law Review, 1998; Vol. 49, No. 4
Go to article
The Myth of Everglades Settlement
Prof. Alfred R. Light, St.
Thomas University School of Law
11 St. Thomas Law Review 55 (1998).
1996
Environmental legislation and the problem of collective action
By Robert V. Percival
9 Duke
Envtl. L. & Pol'y F. 9 (1998)
It is much easier to understand why environmental laws are needed than it is
to comprehend how they came to be adopted. Whether described as a "tragedy of the
commons," a problem of externalities, or a free-rider problem, the reasons why the
marketplace alone will not provide sufficient clean air, clean water, and other public
goods are well understood. But while a powerful case can be made that collective
action to protect the environment is in society's best interests, it is hard to understand
how market failures can be redressed through a political process that itself is prone to
problems of free-riders and factional influence.
© 1996 Duke Environmental Law & Policy
The regulation of deep-well injection: A changing environment beneath the surface
By Earle A. "Rusty" Herbert
Pace Environmental Law
Review, Volume 14, Fall 1996, No. 1
"America's journey to environmental awareness has been a relatively
recent one. Not so many years ago, Americans were still living under the illusion that a
land as vast as ours was blessed with indestructible natural resources and
beauty."(2) The illusion could not last, and reality has set in. The economic and
population growth of the nation and the improvements in the standard of living enjoyed by
its citizens require increased industrial production. Technological progress and
improvements in methods of manufacturing, packaging, and marketing of consumer products
result in an ever-increasing mass of waste, including hazardous waste.(3) Regardless of
the waste disposal technology utilized, under the right conditions, waste or constituents
of wastes, particularly liquid wastes, migrate.
© 1996 Pace Environmental Law Review, Volume 14, Fall 1996, No. 1.
Property Rights and Growth Management in Florida: Balancing Opportunity and Responsibility
in a Changing Political Climate
by Michael Murphy
Pace Environmental Law
Review, Volume 14, Fall 1996, No. 1.
A working growth management system can and will separate urban and rural
areas in a way that protects open space, farmland, water recharge areas, wetlands and our
sensitive coastal areas, and yet provide the land, density, and infrastructure needed for
residential, commercial and industrial development.
© 1996 Pace Environmental Law Review, Volume 14, Fall 1996, No. 1.
Using Property Rights to Attack Environmental Protection
by Joseph L. Sax
Pace
Environmental Law Review, Volume 14, Fall 1996, No. 1
THE SECOND ANNUAL LLOYD K. GARRISON LECTURE ON ENVIRONMENTAL LAW.
Conducted at Pace University School of Law, April 23, 1996
My subject is how a quarter century of development in environmental protection is
jeopardized by ill-conceived legislative proposals that purport to protect property
rights. Those proposals - sometimes directly, sometimes indirectly - particularly target
two important but controversial environmental programs, governance of wetland development
under the Clean Water Act (CWA), and the Endangered Species Act (ESA).
© 1996 Pace Environmental Law Review, Volume 14, Fall 1996, No. 1
The Best Laid Plans: The Rise and Fall Of Growth
Management In Florida
by Mary Dawson
Go to article
Florida's Growth Management Act of 1985 (Growth Management Act) was implemented
by the adoption of local government comprehensive plans which were based on the
expectation that land use amendments would receive deferential review by the courts.
© 1996 Journal of Land Use & Environmental Law.
Adding a Statutory Stick To The Bundle Of Rights: Florida's Ability To Regulate Wetlands
Under Current Takings Jurisprudence and Under The Private Property Rights Protection Act
Of 1995
Go to article
The controversy regarding the preservation of wetlands involves two diametrically
opposed and equally important interests: the maintenance of Florida's sensitive ecology
and the continued increase in Florida's population.
© 1996 Journal of Land Use & Environmental Law.
1994
Everglades Restoration: A Constitutional Takings Analysis
by Sharon S. Tisher (Fall 1994)
Vol 10 Journal of Land Use &
Environmental Law No. 1
Courts and
commentators frequently describe one area of
constitutional takings jurisprudence as straightforward
and unambiguous: government action which results in a
permanent physical invasion and occupation of private
property will require compensation.[1]
In contrast to the deep complexities in the area of
regulatory takings, it is clear that private property may
not be physically conscripted for the public good
without payment of just compensation.[2] Justice Scalia,
in Lucas v. South Carolina Coastal Council,[3]
described physical takings as "discrete categories of
regulatory action [which are] compensable without
case-specific inquiry into the public interest advanced in
support of the restraint. In general (at least with regard
to permanent invasions), no matter how minute the
intrusion, and no matter how weighty the public purpose
behind it, we have required compensation."[4]
The profound ecological crisis of the Florida Everglades and the
South Florida ecosystem[5] compels various ongoing and
possible future restoration endeavors, which this article
will describe as "reversionary engineering." This process
entails the dismantling or modified management of
previously constructed flood control structures. The goals
are to restore the hydrology of the region to more closely
approximate pre-flood control and pre-drainage groundwater
levels, flooding and sheet flow dynamics; effect the "unchanneling"
of once meandering rivers; and transform agricultural or
residential lands to wetlands.[6] Such reversionary
engineering, when of a scope sufficient to save the
ecology of the region from progressive degradation, will
affect thousands of acres of now privately owned lands by
the intermittent but arguably "permanent invasion" of
floodwaters or elevated groundwaters.[7]
At first blush the categorical rule for physical takings
appears to impose, if not a roadblock, at least a highly
expensive toll highway upon federal, state, or local
government endeavors to restore the hydrology of the
Everglades region. Under the Lucas Court's formula,
for example, is not the flooding of agricultural lands, as
a consequence of government action, rendering it unusable
for crop production, let alone residential development, a
per se taking, no matter how "weighty the public
purpose behind it"?[8] Largely because of this seemingly
self-evident fact, most projects underway or under
consideration to date contemplate the voluntary
acquisition or eminent domain condemnation of lands
sufficient to cover the area impacted by wetlands and
flood and sheet flow system restoration at a very
substantial public expense.[9] However, no governing case
law squarely addresses the unique legal issues associated
with the intersection of constitutional takings law and
hydrologic restoration projects.
© 1994
FSU
Journal of Land Use and Environmental Law
Abstract
EVERGLADES RESTORATION: A
CONSTITUTIONAL TAKINGS ANALYSIS
Sharon S. Tisher
This Article discusses the impact of
physical takings law on the restoration of the Florida
Everglades. The process of restoring the Everglades
entails dismantling or modifying previously constructed
flood control structures. This hydraulic restoration
will affect thousands of acres of privately-owned lands
through invasion of floodwaters and elevated
groundwaters. The Article suggests that, notwithstanding
the flooding, a categorical physical takings analysis
should not be imposed because hydrological restoration
differs from traditional physical takings. The Article
notes that the government action does not impose an
entirely new burden on property; revisionary engineering
merely restores land to a natural condition. The Article
concludes that there is little legal support for the
contention that property owners have protected property
interests in artificially altered land when the
alteration was predominantly at government expense.
©
1994
FSU
Journal of Land Use and Environmental Law
1988
Protection of the Everglades Ecosystem: A Legal Analysis
by Jamieson
6 Pace Environmental Law Review 24 (1988)
© 1988 Pace Environmental Law Review.
Revised:
09/22/03
