Monday, May 9, 2011

Legislative Session Wrap-Up

Legislative Session Wrap-Up - May 9, 2011

If you’ve been reading the papers (and the alerts Sierra Club Florida has sent out) you know this was a tough session for the environment.  But it could have been worse.  Your input made a difference and we were able to hold off some bad legislation.  We did comparatively well on water quality issues – at least we held off some bad bills.  We were unsuccessful in advancing anything in the way of renewable energy.  And we suffered very bad losses on the growth management bill and on HB 993 which affects the burden of proof.

Our greatest successes were turning the Urban Turf Fertilizer Preemption bill into a bill that allowed localities to continue to adopt and enforce more stringent ordinances than those in the state-wide “Model Ordinance.”  The bill preempts sales bans in the future but grandfathered Pinellas County’s, the only one in the state. This bill, HB 457 by Rep. Clay Ingram passed the full House but will not become law because its companion legislation (SB 606 by Sen. Evers) did not make it through its committees. 

Sierra Club thanks Rep. Ingram for his willingness to work with all of the stakeholders – environmentalists, cities and counties, the garden club and officials and legislators from counties with their own ordinances. Everyone working together made the eventual achievement possible: a bill that allows local governments to protect both their water and their pocketbooks.  Source control is a lot cheaper than getting nutrients out of the water to meet federal Clean Water Act responsibilities. 

The language grandfathering any sales ban adopted before July 1, 2011 was inserted into 7215/2076 that passed both chambers.  This legislation covered many agriculture related subjects.  We hope any bill dealing with the model ordinance and local preemption filed next year builds on the agreements that were made on HB 457.

There was an attempt by Scott’s, Service Master, and Tru-Green to get an exception from rainy season application bans for “professionals applicators” who earn limited certification from the Dept. of Agriculture and Consumer Services, but they were unable to find a bill to amend it into.  Additionally, Rep. Ingram said he would oppose it as it would break the compromise agreement the stakeholders made on his HB 457.

Numeric Nutrient Criteria
Also on the water front, we were successful in stopping HB 239 by Rep. Trudi Williams which, in its original form, would have prohibited agencies of the state from implementing Numeric Nutrient Criteria established by the U.S. Environmental Protection Agency (EPA).  Sierra Club Florida pointed out that even if the state were successful in its lawsuit against the EPA, the language of the bill provided requirements for establishing criteria that would have committed the Dept. of Environmental Protection (DEP) to a method that would have taken many years.

The bill was modified to eliminate the outright prohibition of cooperation with EPA and added a new method of classifying the state’s waters from the current Classes I - V to the proposed Human Use 1-7 and Aquatic Life 1-4.  The new classification system would have allowed some Florida waters to be placed in classifications with lower water quality standards than the current system.  The bill did not have a Senate companion and died in messages.

Sierra Club Florida appeared on a panel on Numeric Nutrient Criteria at the invitation of Rep. Trudi Williams, Chair of the House Select Committee on Water Resources.  While most committee members had already decided the EPA numeric nutrient criteria were a terrible imposition on the state, they were willing to at least hear our side of the issue and we appreciated the chance to bring them our information.

Septic Tanks
You may remember that two weeks after the November 2010 elections the legislature took up the septic tank inspection and evaluation section of SB 550 and extended the effective date of the bill to July 1, 2011 in order to give themselves a chance to repeal it.  Repeal bills were filed in the House (HB 13 by Rep. Coley) and a number were filed in the Senate by Sens. Evers, Lynn, and Dean.  HB 13 did pass the House, but the Senate version took a more circuitous route.  Since Sen. Dean was named Chair of the Environmental Preservation and Conservation Committee, he was able to “workshop” a septic tank bill that started out very much like the fertilizer preemption bills we have dealt with the past few years.  It would have established a “model ordinance” and prohibited the adoption of more stringent provisions anywhere in the state.

Sierra Club and our allies - environmental organizations, cities, and counties - rallied against the preemption issue and succeeded in slowing the bill down.  The Senate bill, SB 1698, was very different from HB 13 and as the end of session neared attempts to amend it bogged down in process.  Ultimately, the issue failed and the language of SB 550 stands. 

It should be understood that there is no money in the budget for the Dept. of Health to implement the septic tank inspection and evaluation program, but the law is still on the books.  Additionally, the part of the law that prohibits the land application of septage is retained on the books as well.  This practice can be a significant source of nutrients in non-point source runoff.

Everglades Funding
Everglades restoration received $19,955,500 in this year’s budget.  This is just under 40% of the $50 million the Everglades Coalition had been asking for.  In previous years $200 million had been set aside for the River of Grass, though this amount had dwindled to $50 million recently.  It was a very hard year to ask for money.

Water Management District Funding
The legislature took control of the water management districts’ budgets and cut the South Florida WMD revenue by $120 million.  The District (now under the direction of Gov. Scott) says it will be able to accomplish its mandate in the next year.  However, since the legislature will have to approve any future increase (which would require an increase in the ad valorem tax levied) it is likely that the cuts are permanent and the districts activities will be very limited.  Water quality around the state and in the Everglades will suffer.  The budget decision is completely at odds with Judge Gold’s decision in which he expresses concern over recent actions by state leaders that suggest Everglades restoration is not a priority and that “the entire situation is rapidly sliding backwards.”

Florida Forever
This land preservation program that started with Preservation 2000 and that received $300 million each year to bond land purchases totaling 2 million acres has received no funding this year. For the past two years the program was cut to $15 million that could only be used to purchase land or conservations easements for cash, not to pay for bonding.  The legislature limited its “support” this year to allowing land conservation purchases if they were funded by the sale of surplus lands.  Since no lands had been sold, there was no budget line this year.   

Payne’s Prairie Bison
A local Sierra Club member alerted us to a plan by DEP to move the bison in Payne’s Prairie (between Gainesville and Ocala) to a new location where they would not be able to roam freely.  Sen. Oelrich accepted our suggestion to find a parks bill to insert an amendment that would allow the bison to remain where they were.  He placed his amendment in Sen. Hay’s SB 236 which provided free park admission to the parents of veterans killed in the line of duty.  Rep. Bembry’s companion legislation, HB 95, was amended to match and the bills passed and are on their way to the Governor.

Growth Management
The legislature started off by reenacting the provisions of SB 360 (removing the requirement for transportation concurrency in Dense Urban Land Areas) to address the lawsuit against it.  They did this by splitting the original bill into three parts which addressed the constitutional problem of its dealing with more than a single subject: transportation concurrency, affordable housing, and security cameras in parking lots.  The bill was reenacted by more than a two thirds margin which insulates it against the constitutional prohibition against unfunded mandates.

But the real work was just beginning.  The legislature has gutted the Growth Management Act as noted in recent Alerts.  The lead legislators on growth management were Rep. Ritch Workman and Sen. Mike Bennett.  Speaker Cannon, Senate President Haridopolos, and Gov. Scott had also weighed in on what a job killer growth management was.  The House took the lead on the issue and while Sen. Bennett told the environmental coalition that he would preserve the less damaging provisions of the Senate version a week before the end of session on, he changed his mind and embraced the House version.  A preliminary outline prepared by 1000 Friends of Florida is pasted in at the end of this report.

Tom Pelham, former Secretary of the Department of Community Affairs, says of the legislation:

The so-called growth management bill passed by the Legislature is an unbalanced, one-sided, and unfair bill. It is written almost exclusively in the interest of developers at the expense of other citizens and the public interest. This is not surprising because most of the bill's provisions were written by lobbyists for business and development groups: the Florida Chamber, Associated Industries, the Association of Florida Community Developers, the Florida Home Builders Association, and the Florida Land Council and its members. The bill eviscerates the state's role in planning, eliminates or greatly weakens many important provisions of the current law, and stacks the deck against citizens by making it almost impossible for them to successfully challenge plan amendments for non-compliance with state law.

Sierra Club Florida worked with 1000 Friends of Florida, Audubon of Florida, the Florida Wildlife Foundation, The Nature Conservancy, Clean Water Action, Defenders of Wildlife, Everglades Foundation, and the Tropical Audubon Society to present a united front on what made sense as far as changes in the growth management law were concerned.  Very few, if any of our suggestions were heeded by lawmakers.  The legislature has made it almost impossible for a citizen to successfully challenge a comprehensive plan amendment, removed fiscal feasibility as a requirement, and removed transportation, schools, and parks and recreation as mandatory elements in a comp plan.

Worse, the provisions were tucked into a budget conforming bill that was sent to a “conference committee” to iron out differences between the House and Senate.  Conference committee reports can only receive a straight up or down vote.  They can be debated, but may not be amended.  Hence, there was no way for moderates to amend the final product.  HB 7129 and Sen. Bennett’s SB 1122 provided a “fig leaf” that the issue was debated and opened to amendment, but they were never conformed to each other and passed.  The real action was placed into 7207, the conforming bill, where no amendments were possible.

The bill (HB 7207) includes a DRI exemption for phosphate mines and many other bad flaws, all of which are predicated on the idea that local governments are willing and able to address the impacts of growth on their communities, the region, and the state.  Effectively, this bill dooms Florida to the “take the money and run” antics of those unscrupulous developers who give their profession a bad reputation.  Florida’s taxpayers will be paying for the legislature’s favor to the development community for decades.

Environmental Permitting – the HB 991 “Train”
HB 991 by Rep. Patronis included a number of provisions Sierra Club objected to strenuously including shifting the burden of proof to citizens challenging a license, permit, or conceptual approval and, at the same time, depriving the challenger of due process in the courts.  The bill also allowed dredging and filling in the Biscayne Bay Aquatic Preserve, limited the amount of information agencies were allowed to request when processing an application, created the DRI exemption for phosphate mines, expedited wetland permitting for the inland port slated for near the Everglades Agricultural Area, and placed into statute a provision already in rule that would allow groundwater to be contaminated all the way to the bottom of a designated aquifer and out to the extent of the land owner’s property line.  Some of these provisions made it into other bills as amendments, but many of the worst provisions were stopped.  At one point, there were at least nine bills that were targets for amendments from HB 991. 

A notable and unfortunate exception is the third party language shifting the burden of proof and depriving citizens of due process.  Rep. Pafford from Palm Beach County was able to amend the provision out of HB 991, but was unable to stop it when it was offered as an amendment to HB 993, a rulemaking bill by Rep. Roberson. 

Some of the provisions of 991 that made it into other bills were improved to where we could live with them.  Rep. Patronis held numerous stakeholder meetings in which we expressed our concerns and in some cases he was willing to make changes.  Some of these issues included: actions that would trigger revocation of a permit, reversing a fund shift in the Lake Belt Miami-Dade Mitigation plan if water quality was significantly degraded, adjustments to the threshold at which local governments would be required to seek delegation from DEP and WMDs or lose their ability to adopt and enforce local ordinances dealing with subjects also under the authority of DEP and WMDs, removing the aggregate mining preemption section altogether, improving the incentive based permitting section, and conditioning an extended of permits for landfills on the inclusion of leachate collection systems.

Wetlands – Ag Exemption
Rep. Bembry’s HB 421 and Sen. Siplin’s SB 1174 both passed and are on their way to the Governor.  This legislation adds “fallowing” and “leveling” to terms defined as being agricultural activities.  “Fallowing” means leaving the land alone so it can “recharge.” (One could be waiting to sell a farm for development and cease farming while claiming that the land was lying fallow.)  Leveling could be used on agricultural properties as long as it was not used solely or predominantly for the purpose of diverting water or destroying wetlands.  This means up to 50% of the wetlands on an agricultural property would be at risk, and the bill provides that no mitigation would be required.  This bill was a top priority of the agricultural industry.  Neither Rep. Bembry or Sen. Siplin were willing to amend their bills.

Ocean Outfalls
HB 613 by Rep. Trujillo passed the full House, but its companion bill, SB 796 by Sen. Diaz de la Portilla died in its last committee, Budget.  Sierra Club had supported the ocean outfalls bill in 2008 and continues to support the elimination of untreated domestic waste water being dumped into the ocean off the coast of SE Florida.  The bills originally delayed the date (2025) by which the outfalls would be eliminated, but were amended to keep the original end date. 

Controversy arose over whether untreated or lightly treated wastewater was being pumped into the Biscayne and Upper Floridan aquifers if a locality achieved 100% reuse of its wastewater.  Research showed that the 100% reuse exemption for advanced wastewater treatment applied only to the water being discharged through the outfall, not the aquifers.  While Sierra Club opposes pumping anything into aquifers, the provisions of the bill did nothing that we had not already signed off on when we supported the bill in 2008.  We remained neutral on the bill itself while urging that the required advanced water treatment programs be advanced as quickly as possible to protect our reefs and coastal waters.  We will work with the bill sponsors to this end in the coming year when it is sure to reemerge.

Renewable Energy
Once again session has come to an end with no meaningful legislation on renewable energy.  Even the bill pushed for by Florida Power and Light (SB 2078 by Sen. Benaquisto, chair of Communications, Energy, and Public Utilities) died because it would  have raised rates.  SB 2078 would have granted utilities (which are regulated monopolies) the ability to recover their costs for renewable energy from ratepayers at more than “avoided cost.”  Avoided cost is the amount a utility would have to spend to purchase new generation capacity equal to that bought from renewable sources.  Since utilities enjoy economy of scale and are subsidized in numerous ways, renewable energy is generally considered more expensive than energy generated by fossil fuels or nuclear power.  Of course the costs of traditional generation are never included: air pollution, CO2, nuclear waste, huge water use and thermal pollution, etc.  If these costs were included in the calculations, renewables would look a lot better on the balance sheet.

Even Agriculture Commissioner Adam Putnam’s push for biofuels was unsuccessful this year.  But we expect to see it back next year.  The Agriculture industry is very interested in this new revenue source.

Farm Photography
Sen. Norman’s SB 1246 passed the full Senate, but died in House messages because it had no companion bill.  This bill made it illegal to take pictures (still or video) of activities while on farm property without the written permission of the owner.  Animal rights activists opposed the bill saying it was designed to protect farmers from exposure of inhumane treatment of animals.  The bill would have also made documenting violations of water quality rules such as Total Maximum Daily Loads (TMDLs) illegal as well.

Democracy and the Environment
The major election bill, HB 1355 by Rep. Baxley, includes provisions that would fine voter registration organizations like the League of Women Voters if they don’t turn in registration forms within 48 hours, reduce the time to gather citizen initiative petitions from four years to two, subject petition gathering organizations to fines, make it more difficult for citizens to vote if they have recently moved or changed their names (students and newlyweds, e.g.), and prohibit “soliciting” voters within 100 feet of the polling place.  “Soliciting” is defined in the bill as including giving legal advice.  So anyone whose right to vote is challenged is deprived of the ability to turn to anyone for help. 

This bill is defended by its backers as a set of needed reforms to prevent voter fraud, but critics insist it is designed to suppress likely Democratic voters in the next presidential election.

HB 1355 also includes the so-called “leadership fund” provision that allows party leaders such as the Speaker and Senate President to funnel money to favored candidates, increasing their influence even more than they now enjoy, which is saying something.

Oil Drilling
There was no oil drilling bill this year, though Sen. Gaetz steered significant amounts of BP settlement funds to the NW Florida coastal counties he represents.  But next year may well see a renewed effort to approve near shore drilling (especially if gas is still hovering around $4/gallon).

Stay prepared!  And thank you for your dedication to protecting the only planet we’ve got.

Dave Cullen
Sierra Club Florida lobbyist

Preliminary Outline of the Growth Management Bill 7207.   SB 2156 includes the “restructuring”  of the Dept. of Community Affairs.
Thanks to Charles Pattison of 1000 Friends of Florida for the outline.  I have added some explanatory comments in blue for those not familiar with some of the terms used.
  1. Plan amendments

    1. most amendments will use the alternative state review/expedited review process
    2. all comp plan elements retained with some inclusion from 9J-5 put into statute  [9J-5 is the rule that implements most of the growth management act – it was repealed and pieces of it have been placed in statute.]
    3. NO limit on timing or number of amendments submitted [plan amendments were previously limited to two per year. This change means they can change the plan every other day… which means it isn’t much of a plan, does it?]
    4. local government still does two public hearings and submits package to DCA and state agencies – NO comments required (no compliance finding of any kind – plan amendment completeness review required and plan amendment goes into effect 31 days later unless timely challenged)
    5. DCA comments limited to state and regional resource and/or facility impacts but these are optional
    6. Need is eliminated  [I would note that need is redefined.  The new law will require plans for land use to accommodate the resident and seasonal populations and to allow the real estate market to operate.  The current meaning of need that is being eliminated is that a locality has to show a demand for more development before it sets land aside for that development.]
    7. Financial feasibility is eliminated [If you don’t have a budget, you don’t have a plan!]
    8. Energy efficiency eliminated
    9. 9J-5 repealed – some portions inserted into Chapter 163, including urban sprawl (only have to show 4 of 8 techniques for addressing sprawl)
    10. Affected parties may file appeals (no change to standing)– burden of proof fairly debatable – file within 30 days after local government adopts  [The fairly debatable standard is an awful change.  There are a number of standards in court proceedings. These standards are generally established at the same time one side or the other is granted some level of presumption.  A criminal defendant is “presumed innocent” unless his guilt is proven “beyond a reasonable doubt.”  This standard used in criminal case is the highest that is in use (absolute certainty would be higher, but it’s not in use).  Civil cases use less exacting standards: clear and convincing evidence is the next one down and preponderance of the evidence means the party has more and/or better evidence.  Fairly debatable is a tougher standard to meet than preponderance because it means that the quality of the challenger’s argument means nothing if the applicant or locality has any kind of an argument at all – even if they only have a scintilla of an argument while the challenger’s is immeasurably better.  It is almost impossible to win a suit as a challenger when the other party has the presumption and the standard is fairly debatable.]
    11. State coordinated review process allows but does not require formal DCA comments when sector plan, rural land stewardship area, EAR based amendment, Area of Critical State Concern or new community plan proposed – any comments follow existing ORC process – regardless of comments made DCA must do compliance finding (45 days) and will post on the DCA website  [EAR refers to evaluation and appraisal report – a report localities were previously required to do each year to determine whether changes in their comp plans were needed. (no longer necessary), ORC refers to objections, recommendations, and comments – this was a report DCA used to provide to localities to indicate places in their proposed comp plan amendments where there were problems (no longer required)- Note: DCA used to be able to examine all the reports from all agencies which were not restricted as to what they could look at.  Now the agencies are restricted, so the state land planning agency (previously DCA, now SLPA) is limited in terms of what it is allowed to see – a great policy to ensure the state’s resources are protected… ]
    12. Amendment goes into effect upon DCA notice unless timely challenged
    13. DCA not allowed to intervene on 3rd party challenges [which means the expertise the DCA has is denied to the courts – calculated to facilitate justice]
    14. Comments by state agencies restricted [see k, above]
    15. No definition of state or regional resources or facilities  [If it’s not defined, no one can go to court to protect them.]
    16. No definition of what constitutes an adverse impact             [again, if undefined, no court case is possible]
    17. Local government can challenge DCA finding of adverse impact to state/regional resources/facilities and DCA has burden of proof (clear and convincing) [a high burden of proof.  I believe it is currently preponderance of the evidence.]
    18. No option for smaller cities and counties to ask for formal comments [smaller localities want  access to DCA’s expertise because they don’t have it.  They’ll be buried by developer’s lawyers and will be pushed into bad decisions.]
    19. Small scale amendment process retained – now allows “related” text amendments
    20. No supermajority votes allowed  [This refers to requiring a supermajority vote of the county commission to approve a comp plan amendment – this lowers it to a simple majority.]
    21. No referendums allowed [This is in reaction to Hometown Democracy – no citizen will be able to start a referendum or start an initiative to forestall a development –(the Tea Party people should be going nuts over this!)]
    22. DCA required to review/reassess all pending cases within 60 days and dismiss those inconsistent with new law
    23. CHHA requirements retained including requirement to set LOS for hurricane evacuation (either 12 or 16 hours to shelter or out of area providing Category 5 protection)  [CHHA = Coastal High Hazard Areas]
    24. No changes to ACSC plan amendments other than using state coordinated review process [ACSC = Areas of Critical State Concern]

  1. DRIs

    1. Exempts Mining (solid minerals [including phosphate]), Industrial, Hotel/Motel and Movie Theaters category – NOTE that Miami-Dade Lake Belt Area not included
    2. Does not include House version with 150% increase in all thresholds or 100% increase in substantial deviation thresholds – various increases in several categories are made [this is one of the few “bright spots”]
    3. 4 year extension for all DRI timelines/mitigation
    4. Exemptions for dense urban land areas, rural land stewardship areas,
    5. OPPAGA to present DRI assessment report by 12/1/17

  1. Sector Plans

    1. pilot status removed
    2. minimum size increased to 15,000 acres
    3. no longer requires DCA approval other than initial plan amendment for long term master plan
    4. detailed specific area plans approved by ordinance not plan amendment [This change will mean a change of venue from administrative to civil court.  Civil judges are not familiar with land use law and it is a more expensive process.]
    5. timeframes can exceed planning horizon of comp plan
    6. need is eliminated
    7. MPO required to match its plans with sector plan needs [MPO = metropolitan planning organization]
    8. Water management district plans required to be consistent with sector plan [A huge sector plan that will use large amounts of water becomes everyone else’s problem.]
    9. DCA, landowner, local government can appeal DSAPs to Land and Water Adjudicatory Commission within 45 days of adoption
    10. 3rd party challenges to DSAPs by 163.3215 only

  1. Rural Land Stewardship Areas (RLSA)

    1. no longer requires DCA approval other than initial plan amendment
    2. local government then adopts overlay ordinance for the area specifying methodology for credits, maximum numbers
    3. credits can only be transferred after a stewardship easement recorded
    4. receiving areas designated by LDR [LDR – land development regulations]
    5. timeframes can exceed local planning horizon
    6. exempt from DRI [DRI= Development of regional impact]
    7. minimum size is 10,000 acres
    8. recognizes the Collier County process as RLSA

  1. Concurrency

    1. Transportation, Schools, Parks eliminated as mandatory – locals can retain or remove by plan amendment (no DCA comment allowed)
    2. Potable water, solid waste, drainage, sanitary sewer still required

  1. Regional Planning Councils

    1. 2 seats added for business and development interests (may not have been included – still checking)
    2. No other changes

  1. Other
    1. Local Planning Agency review of plan amendments not mentioned – local government may retain at its discretion?
    2. EAR process streamlined – no requirement to address statutory changes any earlier than once every 7 years unless proposed amendments touch a statutory change.
    3. 2 year permit extension on local permits
    4. No change to impact fee burden of proof
    5. 2 year moratorium on new/increased fees not adopted
    6.  Climate change/sea level rise adaptation allowance
    7. Mobility plans no longer need to show financing mechanisms [absurd given that transportation is one of, if not the most expensive items in putting a community together.]
    8. Century Commission retained but expires 2013
    9. 30 year developer agreements authorized

  1. DCA (see SB2156)

    1. budget still shows 61 positions – no clarity on how many involved with growth management duties
    2. DCA reference eliminated in statute; becomes “state land planning agency”
    3. Will become Division of Community Development within new agency, Department of Economic Opportunity
    4. Duties include
      1..local government planning assistance/DRIs/planning process
                        2.  grant administration [CDBG, LIHEAP, Weatherization, NSP [CDBG = Community Development Block Grant; LIHEAP = Low Income Heating Energy Assistance Program; NSP =  Neighborhood Stabilization Program]                     
3.  Front Porch FL
                        4.  assist in development of 5  year state strategic plan