Tuesday, April 23, 2013

HOUSE FLOOR VOTE TOMORROW: Urban Fertilizer Preemption Amendment on HB 999

Silver Springs choked w/slime and Marion Co. fertilizer ordinance
is on the chopping block
For the seventh legislative session in a row the urban fertilizer preemption threat is back.

A floor amendment (Raburn) has been filed to HB 999 which will be voted on tomorrow, April 24, on the House Floor.  

It will then be filed to SB 1684 (Altman) if it passes the House.  

Call your Representative now before it is too late - tell them:

Vote “NO” on the Raburn amendment to HB 999.  Vote "NO" on any amendment that would stop or hinder the local regulation of urban fertilizers.

Click HERE for all Representatives' contact info.

Below find the background information on the proposed legislation.

Fertilizer Floor Amendment  

The “Florida Fertilizer Regulatory Review Council” amendment preempts duly elected local governments, is biased in favor of a one-size-fits-all model; prevents the consideration of the costs of inappropriate use of urban turf fertilizer, and packs the ‘Council’ with pro-fertilizer members.

This is a preemption amendment.  It preempts localities from adopting new fertilizer ordinances for three years in (7)(a) and retrospectively preempts Rockledge in Brevard Count from enforcing the strong ordinance adopted on March 20, 2013 by their duly elected officials in (7)(b). 

This amendment grandfathers strong ordinances adopted before March 5 of this year, but only for three years.  And if the industry-related members have their way, the Council’s recommendation will be to eliminate all local ordinances permanently. 

Subsection (2)(a) 5 calls for the Council to identify additional research needs.  You can bet they’ll identify some issue that needs to be studied and in three years the language of this section will be amended to extend the prohibition on new ordinances until the research is done… and it will never be funded.  (This is a time-honored strategy.)  In two steps they will have achieved their goal of preemption of any new ordinances.  [N.B. Subsection (2)(g) also requires the Council to identify additional research that may inform future state policies.]

Preemption is absolutely unnecessary for the “Regulatory Review Council” to perform its job.  Local communities adopting new strong ordinances to deal with the toxic algae problem in places like Indian River Lagoon, Southwest Florida, or the springsheds in Central and North Florida pose absolutely no obstacle to investigating the relation of urban turf fertilizer to negative water quality impacts, and of the different management strategies in use around the state.  All they have to do is add “as of the effective date of this bill” to the Council’s charge to do a comprehensive review of all local ordinances in this state regulating nonagricultural fertilizer or its use. 

The preemption piece is a pure gift to the fertilizer and pest control industry.  They get what they want for three years for no other reason than it was written into the bill.  The call for more “research” sets up future extension and expansion of preemption.  And because the amendment preempts any new strong ordinances it implies they are to be avoided and that the weak “model ordinance” is to be embraced. 

One-size-fits-all bias:  Pro fertilizer industry bias disguised as uniformity or consistency with the Urban Turf Rule that covers the application of lawn fertilizer is evident throughout the language of the amendment.  EXAMPLES:

Legislative finding (1)(b): “Varying state and local regulations govern the regulation of nonagricultural fertilizer or its use, and inconsistencies resulting from varying regulations may affect commerce and impact water quality in this state” implies that differences between regulations are a problem for both commerce and water quality.  The only problem they pose for water quality is when they are too weak, water quality suffers.

Legislative finding (1)(c): “It is advisable to identify practices or a combination of practices, which, based on field testing, expert review, and scientific information, individually or cumulatively protect the quality of waters in this state” precludes identifying combinations of practices, and limits, by implication at least, the identification of a combination of practices to a one-size-fits-all choice.

(2)(b) calls for the Council to do a comprehensive review of the Urban Turf Rule but does not call for recommendations for modifications to that rule.  The rule currently sabotages the use of slow release fertilizers and exempts all “weed and feed” products from regulation for water quality because they contain pesticides.  Therefore, any fertilizer with even a small amount of pesticide is not subject to water quality regulations under the “Model Ordinance.”  (All pesticide regulation in Florida is preempted to DACS.)

(2)(f) calls for the Council to recommend amendments to the “Model Ordinance” after considering consistency with the Urban Turf Rule which can only be the rule that is currently in place including its inadequate provisions for water quality as mentioned above. 

The goal of the “Florida Fertilizer Regulatory Review Council” is not improved water quality.  Subsection (2)(d) makes clear that it is to recommend strategies “that promote consistency in state and local regulation of nonagricultural fertilizer or its use where possible while balancing the need to accommodate reasonable regional and local differences necessary to meet state water quality standards.”

The amendment’s primary concern is “consistency in state and local regulation” - the one-size-fits-all model which has always been the goal of the industry but is contrary to the watershed-by-watershed approach that is promoted by FDEP and the state’s National Estuary Programs.

If the goal of the amendment were to improve water quality, water quality would come first, not as something to be “balanced.”  In fact, if water quality were the goal, the entire thrust of the “regulatory review council” would be to determine if existing regulations were up to the job.  But the goal here is obviously to undercut the ability to regulate, even if doing so means the public will suffer the health and economic impacts of dirty water and have to pick up the tab.

Cost: There is no mandate to consider the costs of cleaning up water bodies polluted by fertilizer.  Subsection (2)(a) directs the Council to perform a comprehensive review of nutrients and their impact on water bodies, but no baseline is to be established for the costs borne by communities caused by polluted water.   Since it is not an expressed requirement, it will not be done. 

This is statute, and therefore legal rules of interpretation apply.  The relevant concept here is Expressio unius est exclusio alterius ("the express mention of one thing excludes all others").  In the context of this amendment the purposes of the Council are enumerated and this explicit enumeration prevents the Council from addressing anything not listed.

This means the assessment of “technically and economically feasible” strategies will exist without a basis for comparison.  (2)(a)5 will assess the costs to the industry of implementing management strategies, but the costs of not implementing those strategies will not be considered.

Composition of the Council - “Fair and Balanced”?: If the purpose of the Council is to investigate the relationship between water quality and urban turf fertilizer, there should be a connection between the members of the Council and those subjects. 

Private sector members of the Council that can be presumed to favor strong ordinances are the representatives of the environment, the League of Cities, the Association of Counties, the Florida Stormwater Association, and a water quality scientist for a total of five.

Private sector members that can be presumed to favor a one-size-fits-all approach are the representatives of the fertilizer, pest control, lawn and landscape, golf course, and retail industries for a total of five. 

The remaining members are representatives of DEP which is responsible for protecting water quality; DACS, whose representatives have consistently denounced ordinances stronger than the FDEP Model;, the UF Institute for Food and Agricultural Sciences whose administrators have repeatedly come down against local strong ordinances, and representatives of the UF Water Institute and a Water Management District, neither of which have weighed in on the issue in the past five years.

All in all, the “balance” looks like six for strong ordinances, seven for one-size-fits-all, and two unknown. 

Why are there representatives of the Golf Course Superintendents Assoc. and the retail industry?  Golf courses are not covered by the Urban Turf Rule or local ordinances, and only a small fraction the retail industry deals with fertilizer.  There’s little chance that a food store or fabric store owner will be the retail representative.  Golf courses and retailers have no direct connection to either water quality or local ordinances and are only there to stack the deck.

And the deck is stacked.  There is a false equality in the composition of the Council as well as in its charge.  The representatives of most of the population of the state: cities and counties (and the stormwater entities that serve them) have no more weight than the representatives of an industry that makes up only a small percentage of the population and whose product causes a significant percentage of the water quality problem in Florida.

Conclusion: Lawn fertilizer’s impact on water quality varies from locality to locality – watershed to watershed.  Urbanized areas with lots of impermeable surfaces speed runoff to local water bodies and coastal waters because water runs downhill.  If fertilizer nutrients are allowed to get into that runoff, impaired water quality can be the only result.  

Florida’s communities need to be able to adopt strong ordinances to prevent fertilizer pollution because they’re on the hook for the clean up if it gets into their water. 

Prevention is always better than cure.

Pushing for a state-wide weak fertilizer ordinance is bad policy that favors one industry, fertilizer, over all the others in the state that depend on water quality.  And it favors the fertilizer industry over citizens whose health, quality of life, and property values are diminished by the inappropriate use of this “legal product.”