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Water Log 28.4, February, 2009

Interesting Items

Around the Gulf…
After Hurricane Katrina pushed sand onto roads and private property in Gulf Shores, Alabama, in August of 2005, the Federal Emergency Management Agency (“FEMA”) asserted that it would fund $5.5 million of a $6 million project to return the sand to the beaches. However, the project cost nearly $9 million, and the city council recently hired the former chief counsel for FEMA during the Clinton administration, Ernest Abbott, to represent Gulf Shores in litigation that seeks reimbursement for these additional costs.l

In a decision reported in detail in the most recent edition of SandBar (Vol. 7:4), a publication of the National Sea Grant Law Center, the Florida Supreme Court, in a 5-2 decision, rejected a constitutional takings claim based on the Florida Beach and Shore Preservation Act, which authorizes the state to engage in beach replenishment projects and assert public ownership of the re-created beach area. The Court held that the Act did not interfere with oceanfront property owner’s common law rights to use and access the water.

In December of 2008, the United States Environmental Protection Agency and the Department of the Army issued revised guidance to ensure wetlands, streams and other waters in Mississippi, Alabama and beyond are better protected under the Clean Water Act. The guidance clarifies the geographic scope of jurisdiction under the Clean Water Act in accord with the 2006 U.S. Supreme Court decision in Rapanos v. United States. The memorandum is available at
http://www.epa.gov/owow/wetlands/guidance/CWAwaters.html.

University of Mississippi