Sunday, May 27, 2018
Editorials

Editorial: Ruling risks retreat on environmental protection

Often the biggest impact of a U.S. Supreme Court opinion isn't what is on paper but the reaction afterward. This week's disappointing 5-4 decision that the St. Johns River Water Management District engaged in a de facto taking of property was complex, but the troubling result could be that state environmental regulators will be even more reluctant to aggressively protect the environment. The state's water management districts and the Department of Environmental Protection should not use the court opinion as another excuse to give free rein to developers.

The case stems from a wetland development permit that an Orange County landowner, the late Coy Koontz Sr., sought from the water management district in 1994. Koontz wanted to develop 3.7 acres of a nearly 15-acre parcel and offered to place the rest under a conservation easement that would bar additional development. Regulators argued that didn't go far enough to protect surface waters and suggested a pair of remedies: reducing the development to 1 acre and putting the rest in a conservation easement; or accepting Koontz's original offer with the condition that he finance wetlands improvements to district-owned land several miles away. Koontz, feeling the financing request excessive, sued.

The trial court agreed with Koontz, finding that the district's suggestion that Koontz finance other improvements was too much to ask. The Florida Supreme Court sided with the water management district, but the U.S. Supreme Court ruled for Koontz.

In her dissent, Justice Elena Kagen points out why the Koontz case is significant. Previous federal standards for protection from unlawful takings, she noted, were limited to real property — when the government took land — not the expenditure of money. Since Koontz never paid the money, Kagen said, there was no taking. "The boundaries of the majority's new rule are uncertain," she wrote.

But the majority opinion written by Justice Samuel Alito found the denial of a permit or the demand for unreasonable fees to be a taking. That expands property owners' rights to challenge land-use laws and fees as unreasonable.

The bigger threat, however, is likely behind the scenes, where regulators could have one more reason to go easy on developers. Since taking office three years ago, Gov. Rick Scott has led a wholesale assault on water management districts, slashing tax revenues and staffs. The same philosophy has applied to DEP, where senior staff show contempt for science-based regulation. Alito noted that the St. Johns River Water Management District could have avoided the ruling had it merely done a better job making more proportionate demands of Koontz. That should be the court's message: Smarter regulation to defend Florida's natural resources, not retreat.

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