Veto HB 7103

House Bill 7103 is Bad News for Everglades Restoration

Consider the following letter prepared by the Everglades Coalition which summarily describes the detriment this bill will cause to the Everglades:

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.