Quick Update: Will Congress Act to Fix the Forest Roads Quagmire through the Farm Bill?

I've had some questions lately about the effects of the U.S. Supreme Court's decision in Decker v. NEDC, 568 U.S. _ (2013). As I've discussed, in that case, the Supreme Court held that the U.S. Environmental Protection Agency’s (EPA) rules properly exempt stormwater runoff from logging roads from permitting under the Clean Water Act. Because of complications from the new rule EPA issued just before oral argument in the Decker case, however, the NEDC had an opening to continue the litigation out in the Ninth Circuit. So the litigation and uncertainty for forest landowners continued.

These questions are timely. As my readers well know, I've been saying for years on this blog that the only way out of the forest roads quagmire and its resulting litigation is for Congress to act.

This year's Farm Bill process was a mess. While the bill sailed through the Senate, in the House nobody on either side of the aisle could agree on anything. Ultimately, the House was able to split the farm components of the bill from the food stamp provisions that have been a part of it for years. Into this "farm only" bill went the Forest Roads Amendment. This amendment would preserve EPA's 37-year-old interpretation that forest roads should be regulated as nonpoint sources (and therefore no permit is necessary). This amendment was basically the same as the Silvicultural Regulatory Consistency Act, which various legislators have been working to pass for several years.

This paves the way for a true legislative solution when the Senate and the House discuss the differences in the bills that were passed later this year--presumably before September 30, when the current Farm Bill expires. If you're a forest landowners or in the forestry industry, you'd do well to call your senators and representatives and encourage their support for the Forest Roads Amendment.

What Effect has the Community Planning Act had on Growth Management in Florida?

Robert Rhodes has a thoughtful piece in the Florida Bar's Environmental and Land Use Section Reporter, entitled "The 2011 Community Planning Act: Certain Change, Uncertain Reform." Bob served as the first chair of the section. In his piece, he focuses on the Community Planning Act's effects on the state's oversight role and its defects. Ultimately, he proposes:

[T]he Legislature should statutorily define the operative terms, important state resources and facilities, and adverse impact. This is core legislative policy-making and a legislative prerogative and responsibility. For reference points, the Legislature can review current state planning policies noted below, the statutory definitions of development of regional impact and the general law guidelines for designating an area of critical state concern. Other useful reference points are the SRPPS, which identify regionally significant resources and facilities.

Depending on the specificity of the statutory definitions, they can be further refined by rules developed by the Governor and Cabinet with the assistance of DEO and other review agencies. If the Legislature decides not to statutorily define the operative terms, rules should be developed and could be subject to legislative review and possible action.

Rulemaking is more than a policy choice. Standing alone, the undefined operative terms are vulnerable to constitutional attack because they are broad, vague, variable and delegate unrestrained legislative policy making to the executive branch review agencies.

He also discusses the state agency's burden of persuasion and how to clarify the act's compliance standards. Bob concludes:

The 2011 Act was branded by proponents as significant growth management reform. Reform means to change for the better, to improve. But it may also mean to end. I’m optimistic the recent legislation may be a catalyst in many communities for improvement and not the beginning of the end of the state planning program. But to borrow a phrase from The New York Times columnist Tom Friedman, I’m now a paranoid optimist.

Upcoming Presentation about Sustainability and Property Rights

On Friday, September 13th at 9 am, come out to the Florida Chapter of the American Planning Association's (APA) annual conference. I'm joining a distinguished panel to discuss sustainability and property rights in a presentation entitled "Where do property rights fit into sustainability? Recent developments affecting planners." We'll discuss a number of cases and developments that I've written about here, such as the Koontz, Ponce Inlet, and Hillcrest cases. Here's a brief description of what you'll learn about:

Are private property rights compatible with sustainability? The law is evolving: what do planners need to know? The U.S. Supreme Court is poised to decide a case from Florida that could have serious implications for how governments can use development exactions. At the same time, the legislature is considering exactions legislation. Another case from Florida could lead to bankruptcy for a local government in Florida if its takings and Bert Harris Act judgments are affirmed on appeal. The panelists will discuss the challenges, pitfalls, and even the opportunities that these developments present.

As I mentioned, we have a great lineup besides yours truly, including:

• Nancy E. Stroud, Esq., AICP, of Lewis, Stroud & Deutsch, P.L., who represents local governments in land use and development matters, drafted the Florida Chapter of the APA's amicus  brief in the Ponce Inlet case, and who serves on the APA's national amicus committee (which submitted a brief supporting the government Koontz)
• Linda R. Hudson, Esq., who is Senior Assistant City Attorney for the City of Tallahassee and is experienced in a variety of planning, environmental, growth management, and land use matters
• Seth. C. Behn, AICP, of Lewis, Longman, & Walker, P.A., who works with a law firm to represent developers in the land use entitlement process

The brochure for the conference is attached.