2011 Legislative Session Wrap-Up

 

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.

 

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.

 

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 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.

 

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.”

 

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.    

 

 

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. 

 

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.

 

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. 

 

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.

 

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.

 

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.

 

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.

 

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.

 

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

 

 

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..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