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Kerri Barsh

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, climate change, energy and infrastructure projects, wetlands and coastal permitting, complex land use projects, air quality matters, hazardous materials contamination, and other compliance and enforcement cases. Kerri is a member of the firm's Executive Committee.

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In response to the widespread impacts of Hurricane Irma in Florida (all coastlines and virtually every community), Speaker Corcoran of the Florida House of Representatives has created a new Committee …
Continue Reading Lessons of Hurricane Irma — State of Florida Focus on Hurricane Preparedness and Infrastructure

On May 31, 2016, in a unanimous ruling, the United States Supreme Court held that the Army Corps’ determination as to whether “protected waters,” subject to Clean Water Act regulations,…
Continue Reading Supreme Court Allows Immediate Challenges to Army Corps’ Clean Water Act Determinations

The Florida Fish & Wildlife Conservation Commission (Florida FWC) is taking comment until January 20, 2016, on changes proposed by the agency on its approach to endangered and threatened species…
Continue Reading Public Comment Deadline Nears on Florida’s Imperiled Species Management Plan in Contemplation of April 2016 Vote

In the latest chapter of the ongoing Clean Water Rule saga, the Sixth Circuit Court of Appeals today stayed implementation of that rule.  Jointly promulgated by USEPA and the Army Corps of Engineers on June 29, 2015 (80 Fed. Reg. 37,054), the Clean Water Rule went into effect on August 25, 2015.  The rule substantially revised earlier rulemakings and guidance regarding the scope of the Clean Water Act’s jurisdiction, but triggered lawsuits and Congressional hearings in doing so.

In the judicial forum, a series of actions were filed in federal district and appeals courts.  The  Judicial Panel on Multi-District Litigation consolidated these actions before the Sixth Circuit Court of Appeals (In re Environmental Protection Agency and Department of Defense Final Rule, Nos. 15-3799/3822/3853/3887).  As consolidated, that matter includes 18 states challenging the rule, as well as numerous intervenors (seven states, the District of Columbia and environmental groups) supporting USEPA and the Army Corps.

The Sixth Circuit’s jurisdiction over the consolidated cases has been challenged, but pending resolution of that dispute, the Court granted a motion to stay implementation of the Clean Water Rule.  Unlike an earlier decision from the federal district court in North Dakota that stayed implementation of the Clean Water Rule in 13 states, this stay applies nationwide.

In addition to the practical implications of this ruling (discussed below), the grounds for the decision are important, as they provide an indication of how the merits of the pending challenges may be evaluated.  The Court concluded that these challenges had a “substantial possibility of success on the merits,” in particular  citing two claims:  (i) that the final rule varied so substantially from the draft published for public comment that it violated the Administrative Procedures Act, and (ii) that the distance-based jurisdictional limitations lacked any scientific basis.  While the Court agreed “the clarification that the new Rule strives to achieve is long overdue,” it concluded “a stay temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new Rule and whether they will survive legal testing.”  The Court split 2-1, with the dissent contending that the Court should not grant the stay without first determining if it had jurisdiction over the case.

As a practical matter, this ruling answers some questions and raises yet others.  While implementation of the Clean Water Rule had already been stayed in 13 states, the rule’s implementation is now halted in all states. The decision states that the stay preserves the pre-Clean Water Rule “status quo,” presumably meaning that the regulations and guidance in effect before the Clean Water Act became effective should again be consulted to determine Clean Water Act jurisdiction.
Continue Reading Sixth Circuit Court of Appeals Temporarily Stays Implementation of the Clean Water Rule

More than 40 years after Congress passed the landmark Clean Water Act, the jurisdictional reach of that statute remains a contentious legal and political issue. By prohibiting the discharge of…
Continue Reading Clean Water Act Jurisdiction under the Newly Issued Clean Water Rule

We wrote here previously about the U.S. Supreme Court ruling in the “takings” case of Koontz v. St. Johns River Water Management District in 2013, which was an appeal by a property owner from an adverse ruling of the Florida Supreme Court with respect to permit conditions requiring off-site mitigation work.    The U.S. Supreme Court’s opinion in Koontz expanded and clarified the unconstitutional conditions doctrine.     House Bill 383, which was signed into law by Governor Scott on June 11, 2015,   creates a statutory cause of action for injunctive relief and damages  for extortionate exactions by local and state governmental bodies, codifying the decision in Koontz and eliminating any uncertainty under Florida law on the availability of monetary damages.   The new statute defines a “prohibited exaction” to include “any condition imposed by a governmental entity on a property owner’s proposed use of real property that lacks an essential nexus to a legitimate public purpose and is not roughly proportionate to the impacts of the proposed use that the governmental entity seeks to avoid, minimize, or mitigate.”  The governmental entity must prove that the exaction is not prohibited and the property owner must prove its damages resulted from the exaction.   Pre-suit written notice to the governmental body is required, providing the government with the opportunity to cure or explain the alleged exaction before litigation commences.  The prevailing party is entitled to recovery of reasonable attorneys’ fees and costs.
Continue Reading New Florida Statute Codifies U.S. Supreme Court Ruling in Koontz and Provides Relief Against ‘Extortionate’ Exactions