Asset Management Newsletter: Prescriptive Rights in ERP Cases
Author: Irene Kennedy Quincey
A common question arising in the early evaluation of an Environmental Resource Permit (ERP) is when must an applicant have an easement in order to legally flow water over adjacent lands? Those rights might not always be clearly laid out in a formal easement. This issue of historic prescriptive drainage rights was addressed in Palm City Civic Organization, Inc. v. Martin County and South Florida Water Management District, DOAH Case # 1023-94, 2010 WL 4673209 (Fla. Div. Admin. Hrgs.), aff’d. 43 So.3rd 697 (Fla. 1st DCA 2010).
The case related to the construction of a proposed Stormwater Treatment Area (STA) by Martin County. Historically, surface runoff from that area had moved across a County right of way and then through a wetland located on the property of Petitioner, Palm City Civic Organization (PCCO), before emptying into a County culvert that discharged eventually to the St. Lucie River.
PCCO claimed that, in order to meet ERP requirements, the County would need to conduct maintenance activity in the wetland (on PCCO’s property) in order for the system to maintain historic flows. PCCO pointed out that in the past the SFWMD had required applicants to provide easements or written authorizations showing the right to use downstream flow ways. Hence, with no permission or easement from PCCO, they claimed that the County lacked the authority to obtain the permit from the District and to operate the system.
Their argument was not persuasive for this Administrative Law Judge (ALJ) who found that the STA would improve the water quality of runoff leaving the site, but would not change the quantity of runoff historically flowing from the STA across Petitioner’s wetland. Neither an easement nor permission was needed by the County since the right to flow through PCCO’s wetland had already been prescriptively established.
A critical factual element in that case rested on the finding that maintenance activity in PCCO’s wetland was not required in order for the project to work. Therefore, the prescriptive drainage rights alone were sufficient for issuance of the ERP permit.
The ALJ also opined that the County had the power of eminent domain, but that such powers were unnecessary for this project. Although the ALJ observed that it might be helpful for the County to have an easement or written authorization to drain through the wetland, in the end, sufficient assurances had been provided that would allow the permit to issue.
As with many ERP projects, characterization and proper presentation of the facts significantly influenced the outcome in this case. If you need assistance with understanding how the facts of your case may be effectively presented Pavese Law Firm’s asset management section stands ready to assist with a review of the title and of the ERP permitting requirements applicable to your property.