A recent US Supreme Court case impacts wetland protection in Florida
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11/15/13 Joshua Holton
WMNF Drive-Time News Friday | Listen to this entire show:
Tags: environment, wetlands, mitigation, US Supreme Court, private property, property rights

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William Mitsch speaking at Stetson University


photo by Brandi Palmer

Wetlands are important to Florida in part because they help to protect against flooding and the adverse effects of natural disasters. Tuesday at Stetson University College of Law in Gulfport legal and environmental experts examined the impacts of a US Supreme Court decision that will affect the way that developers will be able to acquire and build over protected wetlands.

Ed Thomas is the President of the Natural Hazard Mitigation Association, and has worked on about 200 disasters and other emergencies. He said that the way private property is used in a community context is a central theme in law.

Use your property so that you do not harm others. For those of you who are not up on your maxims of law, Roman law, a maxim of law is universally accepted, by definition, and is inarguable.

Thomas noted that the controversial political climate in Washington has led a great many people to distrust government completely; except when it comes to directly preventing people from hurting each other. He has been involved with many disaster relief and hazard mitigation efforts, and he claims that there is only one way to truly prepare property owners for major natural disasters.

One single best form of disaster relief is avoidance. Get it done right. No disaster relief. Mother Nature does what Mother Nature is foreseeably going to do, and it doesn't cause a problem.

While preparing for natural disasters is one way to prevent the impacts of climate change, preserving wetlands can also be a way to keep flooding problems at bay. Wetlands naturally keep rainwater from overrunning suburban and commercial land. In the recent US Supreme Court case Koontz v. St. Johns River Water Management District, one land developer Coy Koontz resisted a permitting requirement to replace three acres of wetland loss with new wetlands. William Mitsch is the director for the Everglades Wetland Research Park, and said that money is at the root of the Koontz case.

They were gonna make a three acre development, what are they gonna do to mitigate? You've gotta create three or four or five more acres to make that acceptable. Otherwise we lose wetlands. But usually you have this low bidder concept when it comes down to getting the engineering, getting the design. and so on. People are just cheap by their very nature, and they find someone who's cheap. and they build a wetland that doesn't work.

Originally, the St. Johns River Water Management district agreed to allow Koontz to dredge three acres of protected wetlands on the condition that he either scale back his project, or replace the wetlands. Koontz argued that the wetland restoration and mitigation that was asked of him was akin to taking away his property. The US Supreme Court decided that while the government did not take his property, it did have to prove that mitigation was relevant and proportional to the wetland loss. Thomas said this is considered by some to be a victory for property owners, albeit a huge problem for hazard mitigation in the region.

They fill their wetlands in improperly as they do not maintain their storm-water management systems, and they develop improperly. We're seeing more and more millions of dollars in damages. And that's without any real discernible impact from sea level rise or climate change, yet. That will only make it worse.

But even as wetland restoration can have a sufficiently positive impact on preventing local flooding, Mitsch said that they can also play a role in preventing some of the adverse effects of global climate change.

We've been very interested in the dynamics of carbon sequestration in wetlands as a function. And since we're going into a carbon economy, and everybody's going after energy, energy, energy, and we've just got so much carbon going into our atmosphere from our vehicles and our combustion sources that our increasing the CO2, the greenhouse...causing climate change, that I think that those of you who are interested in wetlands have to acknowledge that wetlands are the best sink on the planet.

And while developers frequently assert their right to use their property in whichever way they see most fit, Thomas says that truly fair property owner rights take into consideration all property owners.

Land owners have a lot of rights, and I'm a property rights zealot. They should have a lot of rights, but they do not have the right to be a nuisance. They do not have the right to flood their neighbor.

According to Thomas, the most cost effective way to prevent property owners from infringing on one another's respective rights is to ensure proper planning is done on the front end.

There are three ways, and three ways only for somebody to rebuild their lives following a natural disaster. Self help: you write a check, put it on a credit card, you have a Mennonite barn raising have your friends come in and help you. Second, is you have insurance. Disaster relief is a form of number one and number two. The third alternative is litigation. It's the least efficient, the most difficult to do, takes the longest time, and has all sorts of problems. That's the only alternative. The alternative that I'm suggesting is we think about things ahead of time, and do things safely and properly from the beginning.

It should seem like common sense to most folks that new development should done with consideration of its impacts on the community, but Thomas said it should also be done with unplanned and unforeseeable natural events in mind as well. With thousands of lives lost annually to natural disasters, Thomas sees a better way to plan out society.

Typhoons, superstorms, wildfires, are teaching opportunities for us as we move forward. We need to work together, and that's why I'm here today with you. Safe development- development that does not cause harm is affordable. It's well documented in the study by the Multi Hazard Mitigation Council, which looked almost entirely not at getting it right from the beginning, but at the retrofitting to correct past mistakes. I believe, and we have a study that we've just barely begun, if you look at the value of taking a holistic look at development before it takes place that the payback for safe development is 100 to 1, 1,000 to 1 or more.

The outcome of the Koontz case is likely to inspire litigation, requiring governments to bear a greater burden of proof when denying land use permits to property seekers. But Thomas also said that a positive outcome of the Koontz case is in the opinion issued by justice Samuel Alito that, "land owners now have the right and duty to internalize the negative externalities of their conduct," rather than passing the cost of their activities onto the community.

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