May 27, 2020

May 26, 2020

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“Policy-Setting” Florida Resolution Requires County Infrastructure Projects to Consider Potential Impacts of Sea Level Rise and Storm Surge During All Project Phases

On May 6, 2014, the Miami-Dade County Board of County Commissioners passed a Resolution (Click Here) requiring that all County infrastructure projects “shall consider” the potential Impacts of sea level rise and storm surge during all project phases (including planning, design, and construction) to ensure that these projects will function properly for fifty years or the design life of the project, whichever is greater.

This  Resolution holds interest beyond Miami-Dade County.  It comes about as the result of rather straightforward sewer upgrades planned to satisfy the County’s obligations under the federal Clean Water Act.    To quiet critics of large expenditures at potential risk from sea level rise and other climate change effects, the County now seems poised to take climate change resiliency into account every time it makes an investment in its infrastructure.  This may presage similar measures in other cities and counties.

Legal Context

The impetus for this Resolution appears to be a lawsuit filed in Dec. 2012 by the U.S. EPA  against Miami-Dade County in the Southern District of Florida,  U.S. et al. v. Miami-Dade County,  for numerous unpermitted releases of sewage into the Biscayne Bay Aquatic Preserve, in violation of the Clean Water Act (CWA).  EPA and Miami-Dade negotiated the terms of a consent decree that would require the County to fund and upgrade its infrastructure improvements, estimated to cost in the billions of dollars over the term of the consent decree.  Biscayne Bay Water Keeper (BBWK) intervened in the suit in May 2013, seeking to block the entry of the proposed consent decree.  The BBWK claimed that  the decree failed  to address sea level rise and would require the expenditure of billions of dollars of public monies on infrastructure projects that are not sustainable over the long term.

At a hearing on Feb. 10, 2014, before U.S. District Judge Federico Moreno,  EPA argued  that while climate change is “quite possibly the biggest issue facing our generation,” the decree , intended to  address specific CWA violations with sewer system upgrades over a 15-year span,   would not require sea-level rise modifications.  Further, EPA asserted that no other consent decree in the nation had imposed climate -change measures.  BBWK countered by citing to the post-Hurricane Sandy appropriations laws that require the implementation of resiliency planning initiatives to reduce the risks of climate change.   In BBWK’s view, EPA was refusing to apply its own policies and allowing  Miami-Dade to ignore its own policies by proposing a $ 1.6 billion capital improvements plan that ignores the effects of climate change.   Miami-Dade County characterized the delays associated with the entry of the consent decree due to the Intevenors’ challenge as having “exceeded the most pessimistic projections,” underscoring the pressure on the County to proceed with the billion-dollar  repairs to its deteriorating system.

The County received its “huge relief”  when Judge Moreno entered an order accepting the decree on April 10, 2014.  The Judge adopted EPA’s position that climate-change considerations and potential modifications were not in play because the decree addressed only specific repairs over the next 15 years, thereby rejecting  BBWK’s arguments.   An attorney for BBWK expressed disappointment in the ruling, urging that “[t]he elected leaders in Miami-Dade County …put the voters’ tax dollars to use wisely — so that they do not, as Miami-Dade’s own experts have opined, risk $2 billion in wastewater plant capital losses in this hurricane season and every one that follows. ”

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About this Author

Kerri Barsh, Greenberg Traurig Law Firm, Miami, Environmental Law Litigation Attorney
Shareholder; Co-Chair, National Environmental Practice

Kerri L. Barsh is Co-Chair of the firm’s Environmental Practice and represents public and private clients on an array of environmental regulatory, permitting and litigation matters, including transactional support and due diligence, environmental assessment and liability matters, energy and infrastructure projects, wetlands and coastal permitting, complex land use projects, air quality matters, hazardous materials contamination, and other compliance and enforcement cases.


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