Thursday, May 26, 2011

Sierra Club urges Governor Scott to veto bad bill adopted by Legislature -- HB 421 would encourage wetlands destruction and development on farm land

May 23, 2011

The Honorable Rick Scott, Governor
State of Florida
The Capitol
400 South Monroe Street
Tallahassee, FL 32399-0001

Dear Governor Scott:

Sierra Club Florida urges you to veto CS/CS/HB 421, titled “Agriculture-related Exemptions to Water Management Requirements.”

HB 421 builds a loophole that allows owners of agricultural land to ready their lands for development without having to obtain permits from the water management district or to mitigate damage to wetlands.

The bill extends the exemptions from regulation afforded agricultural property to land converted to other uses.  Section 403.927 (1) F.S. states in part, “The Legislature recognizes the great value of farming and forestry to this state and that continued agricultural activity is compatible with wetlands protection.”  However, the addition of two terms added to those constituting “agricultural activities”, specifically “leveling” and “fallowing”, are problematic.  “Leveling” can obviously be used for both agricultural and development purposes.  “Fallowing” (leaving land unseeded) can also be an agricultural practice when allowing the land to rest, or a non-agricultural practice when the land is merely left alone preparatory to conversion. 

This bill allows a land owner to level his land, destroying wetlands in the process, leave it unseeded, and avoid any responsibility to mitigate damage or to obtain a permit from the water management district as long as the land is not converted before four years elapse.  The only other condition imposed on the land owner is that the adverse impact on wetlands not be the sole or predominant goal of the “agricultural practices.”  Therefore, up to 50% of the purpose for destroying wetlands may be their destruction to accommodate future development, while the entity charged with protecting an important natural resource - wetlands, the water management district, is left without recourse.  Further, the bill applies retrospectively to July 1, 1984 which would presumably allow A. Duda and Sons to recoup any losses resulting from their unsuccessful suit against the St. Johns Water Management District[1] even though they broke the law at the time.

While agricultural uses may be compatible with the protection of wetlands, this bill certainly is not.  Wetlands provide eco-system services such as aquifer recharge, storm buffers, and nutrient filtration essential to the citizens, businesses, and industries of Florida.  HB 421 provides its primary benefit only to those owners of land currently classified as agricultural who want to “cash out” by converting their land to a different use.  These land owners should at least be willing to pay the costs borne by any other developer and to uphold the same responsibility for natural resources as other property owners.

We urge you to exercise your authority to veto this bill in order to maintain checks and balances between the desires of individual property owners and the needs of the state, its regions, and communities for healthy eco-systems and the services they provide.


David J. Cullen
on behalf of the Sierra Club Florida Steering Committee

David J. Cullen
Florida Sierra Club Lobbyist
111 Second Avenue N.E. - Suite 1001
St. Petersburg, FL 33701

In 2009, a large agricultural company filed suit5 against one of the WMDs in regard to the agricultural exemption in s. 373.406(2), F.S. The WMD alleged the defendant had constructed numerous drainage ditches on its property without first obtaining required permits from the district. The defendant claimed the construction fell under the exemption afforded through s. 373.406 (2), F.S., since the ditches were consistent with the practice of agricultural activities and not for the “…sole or predominant purpose of impounding or obstructing surface waters…” The court ruled in favor of the WMD, stating that the provisions in s. 403.927, F.S., virtually eliminate the agricultural exemption in s. 373.406(2), F.S., as it applies to alterations impacting wetlands.
5 A. Duda and Sons, Inc. v. St. Johns River Water Management District, 17 So. 3d 738 (Fla. 5th DCA 2009) (Duda I) and 22 So.3d 622 (Fla. 5th DCA 2009) (Duda II)