EPA Proposes Revisions to Clean Water Act Rule Reinforcing Logging Permitting Exemption

EPA has posted its proposed revisions to Clean Water Act rules for logging roads. If you are a forest landowner, I recommend that you provide feedback to EPA in support of the rule. You have about 30 days to send your comment to EPA at Docket EPA-HQ-OW-2012-0195 at www.regulations.gov.

I've been following developments on this forest roads issue for some time now. Forest landowners are facing a great deal of regulatory uncertainty right now because of EPA's rule developments, as well as the U.S. Supreme Court's review of the issue coming this fall.

EPA is hoping that this rule will provide some clarity. Basically, EPA is reinforcing its longstanding exemption of logging roads from permitting requirements:

[EPA] is proposing to revise its Phase I stormwater regulations to clarify that stormwater discharges from logging roads do not constitute stormwater discharges associated with industrial activity and that a National Pollutant Discharge Elimination System (NPDES) permit is not required for these stormwater discharges. In Northwest Environmental Defense Center v. Brown, 640 F.3d 1063 (9th Cir. 2011) (NEDC), a citizen suit was filed alleging violations of the Clean Water Act for discharging stormwater from ditches alongside two logging roads in state forests without a permit. The court held that because the stormwater runoff from the two roads in question is collected by and then discharged from a system of ditches culverts and channels, there was a point source discharge of industrial stormwater for which an NPDES permit is required. The EPA did not intend for logging roads to be regulated as industrial facilities. However, in light of NEDC, the EPA proposes the addition of language to 40 CFR 122.26(b)(14) to clarify the Agency’s intent.

Footnote 1 of the proposed rule further states that EPA still hopes that the U.S. Supreme Court will determine that forest and logging roads are not point sources (which would make its proposed exemption above unnecessary):

This rulemaking responds to the uncertainty created by the Ninth Circuit's holding in NEDC that certain channeled discharges of stormwater from logging roads constitute point source discharges, bringing them within the Section 402 NPDES permitting framework. This proposed rule, by clarifying what counts as a discharge "associated with industrial activity," makes clear that such discharges do not require NPDES permits even if they are point source discharges. Nothing in this proposed rule should be construed as conceding that discharges of stormwater from logging roads constitute point source discharges, a question on which the Supreme Court has granted review for the October 2012 term.

More information is available on EPA's website for Stormwater Discharges from Forest Roads. EPA has posted the proposed rule, a fact sheet, and a frequently asked questions sheet.

For Bert Harris Act Claims, Make Sure Your Appraisal Measures Up

A recent case highlights the importance of making sure appraisals measure up in Bert Harris Act claims. If they're not up to snuff, a property owner's claim could be tossed out of court.

Some background: the Bert J. Harris, Jr., Private Property Rights Protection Act was enacted in 1995 to provide protection for landowners beyond the law of takings and inverse condemnation. The Florida Legislature recognized that:

some laws, regulations, and ordinances of the state and political entities in the state, as applied, may inordinately burden, restrict, or limit private property rights without amounting to a taking under the State Constitution or the United States Constitution. The Legislature determines that there is an important state interest in protecting the interests of private property owners from such inordinate burdens. Therefore, it is the intent of the Legislature that, as a separate and distinct cause of action from the law of takings, the Legislature herein provides for relief, or payment of compensation, when a new law, rule, regulation, or ordinance of the state or a political entity in the state, as applied, unfairly affects real property.

§ 70.001(1), Fla. Stat. Thus, it "provides a cause of action for governmental actions that may not rise to the level of a taking under the State Constitution or the United States Constitution." Id. at (9). The remedy that the is that:

When a specific action of a governmental entity has inordinately burdened an existing use of real property or a vested right to a specific use of real property, the property owner of that real property is entitled to relief, which may include compensation for the actual loss to the fair market value of the real property caused by the action of government, as provided in this section.

Id. at (2). The Bert Harris Act defines "inordinate burden" using phrases that are familiar from takings law:

Mean that an action of one or more governmental entities has directly restricted or limited the use of real property such that the property owner is permanently unable to attain the reasonable, investment-backed expectation for the existing use of the real property or a vested right to a specific use of the real property with respect to the real property as a whole, or that the property owner is left with existing or vested uses that are unreasonable such that the property owner bears permanently a disproportionate share of a burden imposed for the good of the public, which in fairness should be borne by the public at large.

Id. at (3)(e)(1). 

It's imperative that property owners start thinking about Bert Harris Act claims as soon as a regulation is applied to their property for the first time. The claims have a very short shelf life: the law provides for a 1 year presuit notice requirement that commences upon the first application of a law, regulation, or rule. Id. (11)(e). This is made even shorter by a requirement that the government entity must be given either 90 or 150 days' notice, depending on the property type before an action can even be filed in court. Id. at (4)(a). The notice must attach "a bona fide, valid appraisal that supports the claim and demonstrates the loss in fair market value to the real property." Id.

This is where a recent case out of the 2d DCA comes in. Turkali v. Safety Harbor, — So.3d —-, 2012 WL 3020381 (Fla. 2d DCA 2012). In Turkali, the landowner filed his claim and his notice on time. The appraisal was deficient, however, in two ways. First, the appraisal did not set out the value of the property just before and just after the harmful action. Second, it bundled the property's value with several adjoining properties that landowner did not own, assuming that they would be developed together. Because the appraisal was deficient, the trial court held that notice to local governments involved was ineffective. Consequently, the trial court dismissed the case, and the 2d DCA affirmed. 

It's not clear from the case whether the landowner could have sent the local government another notice and appraisal with the case still pending in court. What is clear, however, is that property owners should be careful in obtaining a solid appraisal to provide up front during the notice period.

EPCRA: Federal Environmental Reporting 101

Although I neglected to publish it here, some months ago, the American Bar Association's Young Lawyer's Division published my crash course on the Emergency Planning and Community Right-to-Know Act (EPCRA) in its "101 Practice Series." The series is aimed at providing young lawyers with a quick and dirty introduction to specific areas of the law. Many of you know I've joined the Tampa law firm Bricklemyer Smolker & Bolves, where I'm continuing my environmental practice in addition to property rights and land use law.

Will the U.S. Supreme Court Grant Review of Florida's Koontz Case to Clarify Exactions Law?

I've written before about a Florida property owner's request that the U.S. Supreme Court review an exactions decision by the Florida Supreme Court. Readers will recall that in St. Johns River Water Management District v. Koontz, 77 So. 3d 1220 (Fla. 2011), the Florida Supreme Court severely limited exactions law in this state. For the uninitiated, exactions are government requirements to donate something (usually real property) in exchange for a development right or permit. The U.S. Supreme Court requires exactions to meet a pair of conditions, sometimes called the Nollan-Dolan test: First, there must be an “essential nexus” between the exaction and the interest that the exaction is advancing. Nollan v. Cal. Coastal Com., 483 U.S. 825, 837 (1987). Second, there must be a “rough proportionality” in both nature and extent between the exaction and the impact of the proposed development. Dolan v. Tigard, 512 U.S. 374, 391 (2005).

The U.S. Supreme Court has not yet given much more guidance on exactions, and confusion has been the result. The Florida Supreme Court forged its own path, holding that the Nollan-Dolan test only applies to (1) exactions of real property (2) where a permit was actually issued and imposed an exaction. Consequently, in Florida, there are now relatively few restrictions on what a local government can ask for in exchange for a development permit. Other states, like Texas, have seen little distinction between a government asking for real property and asking for personal property (like money). This latter view seems to make the most sense to me: real and personal property are fungible, and both can be used to mitigate development impacts, so why should the government be able to avoid the Takings Clause by asking for personal property?

The District has responded to the Pacific Legal Foundation's petition for certiorari. The brief doesn't seem to be available elsewhere online, so I've posted the District's opposition brief here and below. The District makes a couple of arguments. First, the Supreme Court does not have jurisdiction because of Koontz's reservation of his rights to take claims to federal court later. Second, the District did not exact anything because it never issued a permit or collected an exaction.

These problems do not seem to be insurmountable to the Court in taking the case on. First, Florida's Takings Clause is interpreted coextensively with the federal Takings Clause, so the Court could accept jurisdiction just as it did when a very similar argument was made in the briefing of Stop the Beach Renourishment v. Florida Department of Environmental Protection,130 S. Ct. 2592 (2010). Second, if the District's exaction were unconstitutional and so onerous that the landowner could not continue with its plan (or do anything else), why should it be shielded from liability? In effect, as the trial court seemed to recognize, that may just mean a temporary taking occurred. 

I'll have an article in the American Planning Association's Planning & Law Newsletter soon taking a deeper look at these issues.