The Honorable Ron DeSantis
Governor, State of Florida
The Capitol
400 S. Monroe St.
Tallahassee, FL 32399-0001
RE:
Veto HB 7103
Dear Governor DeSantis,
The below-signed
organizations, committed to the protection and restoration of America’s
Everglades, respectfully request that
you veto House Bill (HB) 7103. This
bill has several provisions that could negatively impact the full restoration
of the Greater Everglades ecosystem, including efforts to reduce nutrient
pollution in our waterways; the worst of which were quietly amended onto the bill in the final hours of the
legislative session and adopted without public
input, meaningful discussion or debate in committee
hearings, without any legislative staff analysis, and without any public
testimony. In as much, legislators voted
without fully understanding the impact of those last minute changes. Good governance dictates that HB 7103 must
not be signed into law and deserves your veto.
America’s
Everglades is a unique ecosystem that extends from the Kissimmee Chain of Lakes
into Lake Okeechobee, through the “River of Grass,” out to Florida Bay and the
Florida Keys. This vast natural wonder has been severely impacted by
over-development, habitat degradation, pollution and other man-made changes.
A critical tool that is used to ensure that
Everglades restoration efforts are not further hindered, and that helps protect
what is left of this ecosystem, is the local comprehensive plan. Local comprehensive
plans include elements that address important issues relevant to our Everglades
efforts, such as water quality, flood protection, drainage, waste management,
water resource protection, aquifer recharge, water supply, conservation of open
space, wetlands and other ecologically sensitive habitats, coastal management,
urban development boundaries, agricultural buffers, and intergovernmental
coordination. Because they have site-specific legally-binding policies required
for addressing environmental issues, and because the current law requires strict
compliance with them, local comprehensive plans are presently the state’s best
environmental protection tool relative to water quality,
wetlands, drinking water, and flood protection.
By law, once
adopted, any local development decisions must be consistent with such
comprehensive plans. This law
was utilized a few years ago to overturn a county’s approval of three major
lime rock mines in the Everglades Agricultural Area: US Sugar
Corp. v. 1000 Friends of Fla., 134 So. 3d 1052, 1053 (Fla. 4th
DCA. 2013).
In those cases, the state’s wetland law was not going to prevent the
mines. It was the county comprehensive
plan policy prohibiting mining in the
EAA – to preserve it for farming and Everglades Restoration – that stopped the
mines. HB 7103 would have made those
cases impossible and will render similar cases impossible in the future if it
is signed into or allowed to pass into law.
HB 7103 will make a losing party, in
consistency challenges, automatically liable for a prevailing party’s attorney
fees. This will effectively end citizen enforcement of local comprehensive
plans. In general, citizens who may bring challenges to defend against environmental
threats, such as loss of wetlands that filter pollution and reduce flooding, do
not have the same financial means as developers and/or local governments.
Citizen comprehensive plan challengers
typically struggle just to cover their own attorney fees; the risk of having to
pay the attorney fees of local governments and/or other intervening party would
make challenges much less available to concerned citizens. Only the very wealthy would be able to attempt
those challenges.
Courts have said
that “citizen enforcement is the primary tool for insuring consistency of
development decisions with the Comprehensive Plan”[1] and that the law’s “purpose cannot be
achieved without meaningful judicial review in lawsuits….”[2]. Comprehensive plans are written for the very
purpose of governing individual development decisions. If that purpose cannot
be enforced by the only persons with standing to do so, the entire Community
Planning Act would be essentially repealed. If it becomes law, HB 7103 would effectively eliminate the only means
left for Floridians to enforce consistency with local comprehensive plans,
including those relevant to the protection and restoration of the Everglades. As
stated recently by the American Planning Association FL Chapter, HB 7103 “will
have a chilling effect on, and raise a true barrier to, citizen participation
in the enforcement of local plans... The bill also removes the authority for
the Department of Legal Affairs to intervene in such challenges to represent
the interests of the state [such as Everglades restoration], so these citizen
and interest group challenges are truly the only means of policing the
compliance of development orders with comprehensive plans… If development order
consistency cannot be enforced, the binding legal authority of comprehensive
plans is rendered meaningless… the failure to follow them… can lead to
environmental degradation."[3]. Comprehensive plan consistency challenges are
the only tool available to local citizens to hold local governments
accountable. Without them, the local comprehensive plans that have been
maintained over the past 30 years would become meaningless, and Everglades advocates would lose an
important tool that could help prevent development mistakes and protect our
Everglades restoration investments.
If HB
7103 becomes law, local communities will likely see more developments that
do not comply with local protections for water resources and environmentally
sensitive lands. This is of grave concern to the Everglades and clean water
advocacy communities.
In addition, the
automatic attorney’s fees sanction in HB 7103 is unnecessary; Florida law already
deters baseless legal challenges and prevents spurious litigation for improper
purpose, such as undue delays of lawful development proposals. HB 7103 would also encourage the courts to
hear comprehensive plan enforcement cases using a summary procedure that limits
discovery. Summary procedures are not appropriate for consistency challenges
which involve complicated questions of law and fact and are often expert
intensive.
It is noteworthy
that one of the Everglades Coalition’s legislative priorities this year was to
“reinstate strong statewide and regional land use planning to guide sustainable
growth that is protective of Florida’s remaining natural areas and resources…”. While there is much work to be done to
realize that goal, your veto on HB 7103
will ensure that all Floridians, including Everglades advocates, continue to be
able to hold local governments accountable on commitments they made to protect
our natural resources.
Sincerely,
1000 Friends of
Florida
Thomas Hawkins,
Policy & Planning Director
Apalachicola
Riverkeeper
Georgia
Ackerman, Riverkeeper and Executive Director
Audubon
Everglades
Scott Zucker,
Vice President & Conservation Co-Chair
Audubon Florida
Celeste De
Palma, Director of Everglades Policy
Bullsugar
Alliance
Alex Gillen,
Policy Director
Calusa
Waterkeeper
John Cassani, Waterkeeper
John Cassani, Waterkeeper
Cape Coral
Friends of Wildlife
Lori J.
Haus-Bulcock, Board Member
Cape Coral
Wildlife Trust
Pascha
Donaldson, President
Center for
Biological Diversity
Jaclyn Lopez, Florida
Director
Conservancy of
Southwest Florida
Nicole Johnson,
Director of Environmental Policy
Conservation
Alliance of St. Lucie County
Shari Anker,
President
Defenders of
Wildlife
Elizabeth
Fleming, Senior Florida Representative
“Ding” Darling
Wildlife Society
Mike Baldwin,
President
Earthjustice
Alisa Coe, Staff
Attorney
Environment
Florida
Jennifer
Rubiello, State Director
Environmental
Confederation of Southwest Florida
Becky Ayech,
President
Everglades Law Center
Lisa Interlandi,
Executive Director
Florida Bay
Forever
Elizabeth Jolin, Executive Director
Elizabeth Jolin, Executive Director
Florida
Conservation Voters
Aliki Moncrief,
Executive Director
Florida Keys
Environmental Fund, Inc.
Charles Causey,
President
Florida Native
Plant Society
Susan Carr, PhD,
President
Florida
Oceanographic Society
Mark Perry,
Executive Director
Florida Wildlife
Federation
Preston T.
Robertson, President & CEO
Friends of ARM
Loxahatchee National Wildlife Refuge
Catherine
Patterson, President
Friends of the
Everglades
Philip Kushlan,
President
Indian
Riverkeeper
Marty Baum,
Riverkeeper
International
Dark Sky Association, FL Chapter
Diana Umpierre,
Chair
Izaak Walton
League of America, FL Division
Michael
Chenowetht, President
Izaak Walton
League of America, FL Keys Chapter
Michael
Chenowetht, President
Lake Worth
Waterkeeper
Reinaldo Diaz,
J.D., Waterkeeper, President
League of Women
Voters of Florida
Judith Hushon, State Natural Resources Chair
Judith Hushon, State Natural Resources Chair
Marine Resources
Council
Leesa Souto,
PhD, Executive Director
Martin County
Conservation Alliance
Tom Bausch,
Board Member
Matanzas
Riverkeeper
Jen Lomberk,
Executive Director & Riverkeeper
Miami Pine
Rocklands Coalition
Relman R Diaz,
Secretary
Naples
Backcountry Fly Fishers
Edward Tamson
Ph.D., Conservation Director
Sanibel-Captiva
Conservation Foundation
Ryan Orgera,
PhD, CEO
Save the Manatee
Club
Anne Michelle
Harvey, JD, MS, Staff Attorney
Sierra Club
Florida
Frank Jackalone,
Chapter Director
South Florida
Wildlands Association
Matthew Schwartz, Executive Director
Matthew Schwartz, Executive Director
Suncoast
Waterkeeper
Andy Mele,
Interim Executive Director
The Institute
for Regional Conservation
George D. Gann,
Executive Director & Chair of the Board
Tropical Audubon
Society
Jose Francisco Barros, President
Jose Francisco Barros, President
WWALS Watershed
Coalition, Inc.
John S.
Quarterman, Suwannee Riverkeeper
cc: Noah Valenstein, Secretary,
FDEP
Drew Bartlett, Executive
Director, SFWMD
SFWMD Governing Board
[1] Pinecrest
Lakes, Inc. v. Shidel,
795 So. 2d 191, 202 (Fla. 4th DCA 2001).
[2] Sw. Ranches
Homeowners Assoc. v. Broward Cty., 502 So. 2d 931, 936 (Fla. 4th
DCA1987).
[3] American Planning Association FL Chapter letter to Governor DeSantis on HB
7103, May 13, 2019.
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| Three Lakes WMA in the Kissimmee Prairie (Florida Fish and Wildlife photo by Andy Wraithmell) |
