Koontz: Practical impact on wetland mitigation

 In Environmental Permitting, Mitigation, Wetland

The Koontz v. St. Johns River Water Management District (Koontz) decision has had a big impact on wetland mitigation projects in the state of Florida.  The Supreme Court of the United States (SCOTUS) affirmed the practice of wetland mitigation to offset wetland impacts, and clarified that the mitigation must be directly proportional to the environmental damage caused by the project. An excellent legal discussion of implications can be found here.

When OEC makes proposals for wetland mitigation, we follow state and federal mitigation policy to develop mitigation plans that make ecological as well as financial sense for our clients.  When Koontz originally came down in 2013, we were in the middle of several projects that were immediately affected.

Without getting into the procedural details of how we put together mitigation plans, I will shorten this discussion to say that we use whatever wetland resources available at the project site, then we move to offsite mitigation providers.  Today, state and federally-approved mitigation banks dominate the offsite mitigation market with alternate sites generally being frowned upon, though technically still acceptable.

Many wetlands are situated in a mosaic of uplands and wetlands with curving boundaries.

Example of a habitat map showing a mosaic of wetlands and other surface water features.

Example of a habitat map showing a mosaic of wetlands and other surface water features.

Ecologically speaking, this mosaic of habitats provides habitat diversity that is essential to functioning ecosystems.  Until the summer of 2013, upland islands were often added to mitigation plans by property owners and consultants for convenience.

This practice had the side effect of making the onsite mitigation plans look more robust, as there was more area offered as mitigation, and the state and federal regulators did not seem to take issue with the practice.

Typical pre-Koontz conservation easement

Typical pre-Koontz conservation easement

Koontz forced applicants to exclude excess mitigation areas regardless of any other considerations. In the case of two significant commercial the projects we had in the permitting process in the summer of 2013, we had to generate new mitigation drawings to be sent to the project surveyor so they could generate legal descriptions that specifically excluded excess areas from the mitigation plans.  That sounds easy.

One practice used by the St Johns River Water Management District in Florida to protect the ecological integrity of wetlands is to add 25-foot upland buffers to a protected wetland.  When a 25-foot upland buffer is established for mitigation purposes, it has the practical effect of generating sweeping arcs on outside corners.  That does not sound like a big deal, at least it did not to me at the time.   Enter the legal description.

Legal descriptions are required to define the limits of a parcel in the US and many other countries. A comprehensive discussion of legal descriptions in the US can be found here.  In this application, they are used to describe the area for mitigation.  Straight lines are relatively easy to describe with a legal description: curves are a nightmare.  Due to complexity and length, software is usually used by surveyors to generate legal descriptions of complex shapes generated by our GIS software.

As of the summer of 2013, many surveyors used the practical shortcut of a 25-foot offset to the wetland line, and then provided a legal description of that shape.  It got the job done, and most property owners did not care that they were giving away a few square feet here and there if it kept things simple.  Koontz did away with this shortcut.

Typical post-Koontz conservation easement

Typical post-Koontz conservation easement

The legal descriptions required by Koontz now leave upland islands stranded within highly restrictive conservation easements.  At this time, it is not clear what ecological impact that will have, if any.  From a practical standpoint, these areas are effectively preserved within the larger landscape even though the property owner did not receive any acknowledgement or compensation.  In my example above, the conservation easement went from 9.49 acres to 8.62 acres which is about a 9% reduction, but the effective mitigation area is essentially the same.


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