A Model Wetlands Protection Ordinance: Legal Considerations

Many counties in Florida are currently in the process of developing new wetlands protection ordinances, or revising old ones. While public policy supports strict regulation of activities in wetlands, many counties are reluctant to adopt restrictive ordinances because of the potential for large damages awards if the regulations are later found to be temporary takings. Recent Supreme Court case law has upheld the payment of compensation as an appropriate remedy for overly restrictive land use regulations compounding the fears of local governments. This paper summarizes the legal implications of a Model Wetlands Protection Ordinance developed by the author. In particular, an outline of the mechanisms that enable local governments to minimize the risk of paying compensation for restrictive wetlands regulations is included. The Model Ordinance is a prototype to aid Florida\u27s local governments in developing their own wetlands protection ordinances. It is necessary for local governments to adopt wetlands ordinances for several reasons. First, wetlands perform important hydrological, ecological, economic, and sociological functions. These functions are negatively impacted by improper land use. Many of Florida\u27s wetlands have already been destroyed or diminished by improper land development. Second, current federal and state wetlands regulations provide inadequate protection to wetlands functions. For example, federal law does not regulate any activity that does not involve discharge of dredge or fill materials into waters of the United States. Federal law further exempts from regulation agricultural activities and only provides for general permitting for certain other discharges. Federal jurisdiction does not extend to wetlands that are not contiguous or adjacent to waters of the United States. Additionally, judicial interpretations of federal regulations have severely weakened the wetlands permitting criteria. Likewise, Florida\u27s Wetlands Protection Act and related regulations do not adequately protect the important natural functions of the state\u27s wetlands. The Florida Wetlands Act exempts major activities, such as agriculture, which may have significant effects on wetland functions. The Act fails to give the state regulatory jurisdiction over many functioning and ecologically important wetland systems. In addition, the Act\u27s criteria are vague and not stringent enough to protect wetlands from the adverse impacts of development. Furthermore, federal and state governments generally protect only wetlands of national or state concern; local wetlands often are unprotected. Third, local governments have generally had broader police powers to regulate land use than other levels of government. Fourth, Florida\u27s 1985 Growth Management Act mandates that local governments plan for the management of wetlands in their comprehensive plans and adopt land development regulations consistent with the plan. Finally, local governments may regulate wetlands more cheaply and easily and with less bureaucracy than other levels of government