Environmental Intersection by George Lindemann

Blue Spring. Photo Credit: systemslibrarian

Former U.S. Sen. Bob Graham and Nathaniel P. Reed of Hobe Sound were among the speakers in November during an environmental rally outside the Capitol. They called on Gov. Rick Scott to show leadership on environmental issues and for the Legislature to undo some of the harmful law and budget changes they said occurred during 2011. Environmentalists didn't get what they were calling for, but they may have somewhat begun to turn the tide that has been running against the programs they support. Any success those groups enjoyed during the 2012 session may be better measured not by what was passed as by what didn't pass. Efforts to restrict local fertilizer ordinances and to encourage oil drilling on state lands failed. Other bills were modified to gain environmental support. However, a bill repealing the statewide requirement for septic tank inspections passed. The Sierra Club and Florida Stormwater Association opposed the bill's new restrictions on local septic tank inspection programs. Meanwhile, visitors to state trails and state parks could see advertising and herds of African wildlife. The Florida Forever land-buying program and Everglades restoration received some funding, but not as much as environmentalists had hoped. 

KEY ISSUES

TRAILS, STATE LANDS: SB 268, which is headed to the governor, allows businesses and groups to sponsor trails and put their advertisements at trailheads. The bill still faces opposition because it allows the Department of Environmental Protection to negotiate agreements for trails other than the seven identified in the bill. … HB 1117, which is headed to the governor, would allow giraffes, elephants, rhinos and other zoo animals to roam state parks with approval by the Cabinet.  .... A provision in SB 1998, a budget conforming bill related to transportation that is headed to the governor, requires an expedited hearing process for a legal challenge to the proposed dredging in Biscayne Bay to deepen the port of Miami. ... HB 1103, which environmentalists opposed as a state-lands giveaway by changing the definition of submerged state lands, stalled after its first committee stop. ... HB 695, encouraging oil and gas exploration and drilling on state lands, died on the House calendar.

WATER QUALITY: The 2010 requirement for septic tank inspections statewide will be repealed if Gov. Rick Scott signs HB 1263. That Department of Health reorganization bill contained the language from HB 599. The bill also places limits on local septic tank inspection programs, prohibits inspection requirements when a home is sold, and prohibits local ordinances requiring advanced "performance-based" septic tanks until a DOH study is completed. … The Legislature in HB 7051 waived approval of water quality rules proposed by the Florida Department of Environmental Protection. Those rules, which face a legal challenge filed by environmental groups, would replace federal rules that utilities and industry groups oppose. The bill was signed by Scott on Feb. 16. … There was a fight again this year between environmentalists and the landscaping industry over local fertilizer regulations. SB 604, exempting certified landscaping professionals from local ordinances, was killed by the Senate Committee on Environmental Preservation and Conservation by a 4-3 vote.

WATER POLICY AND PERMITTING: HB 503 resembled an environmental permit streamlining bill that passed the House last year but wasn't voted on in the Senate. Rep. Jimmy Patronis, R-Panama City, was praised by environmentalists for resolving a variety of concerns. The bill also fixes 2010 recycling legislation that would have allowed counties to claim recycling rates in excess of 100 percent. … Environmentalists also backed HB 639 dealing with treated wastewater after an objectionable provision was removed. The bill encourages the use of such "reclaimed water" by exempting it from water management district permitting. … HB 1389, which would exempt landowners from wetland regulations for participating in environmental water storage programs, passed during the final day of the session. … HB 7003 directs the Florida Department of Environmental Protection to undertake writing a statewide Environmental Resource Permit rule. … HB 7045 allowing permits for up to 37 years for alternative water supply projects passed the House 116-0 but wasn't taken up by the Senate.

BUDGET: SB 1986, a budget conforming bill that lifts the property tax revenue caps imposed in 2011 by the Legislature, passed the House and Senate. The Florida Conservation Coalition initially opposed a requirement in the bill for legislative approval but dropped its opposition after the language was modified … After vetoing Florida Forever spending authority last year, Gov. Rick Scott requested $15 million for the program in fiscal year 2012-13. The Legislature provided $8.3 million. … Scott also requested $40 million for Everglades restoration. The Legislature provided $30 million for Everglades restoration plus $5 million for the northern Everglades (north of Lake Okeechobee) and estuaries programs. ... The budget also includes $10 million for beach sand restoration projects, $4.8 million in debt service towards a $50-million wastewater plant in the Florida Keys, $5.6 million for St. Johns River restoration projects, $125 million for petroleum contamination sites and $4.8 million for Lake Apopka restoration.

AGRICULTURE: HB 1197, which gives the Florida Department of Agriculture and Consumer Services sole authority to regulate beekeeping, is on its way to the governor. Language from other bills that were languishing was added to HB 1197, including an exemption from local government stormwater fees for farms. Citrus harvesting equipment and fruit loaders would be added to the list of farming vehicles that are exempt from paying state motor fuel taxes. The beekeeping provisions of HB 1197 were prompted by local restrictions on beekeeping cropping up in some suburban areas. People for the Ethical Treatment of Animals is calling for a veto because of a Senate amendment the group says would allow chicks and bunnies to be sold at Easter and then discarded. ... HB 1237, which returns the executive director of the Department of Citrus to being an appointed position without Senate confirmation, also is headed to the governor.

 

A comprehensive list of Environment and Natural Resources legislation that was passed during the 2012 Regular Session can be found here.

 

Reporter Bruce Ritchie can be reached at britchie@thefloridacurrent.com.

  

Re the March 7 editorial, Hands off our water: I would like to address a few key points regarding discussions with our partners to find a new site for the Miami-Dade County Fair & Exposition, which currently is located on land adjacent to our Modesto A. Maidique Campus.

Particularly, I’d like to emphasize that FIU has never proposed to move the Urban Development Boundary or pursue incompatible land use outside of it. This university has always been committed to protecting the natural resources of our region. Indeed, our faculty is made up of some of the foremost experts on Everglades restoration and protection. Our sole purpose has been to find an available and agreeable site for relocation of the fair, so that FIU may grow into the 86 acres the fair currently occupies, just south   of FIU’s campus. The Bird Drive Basin site also presents an opportunity to establish a new legacy park for area residents on the rest of the property.

The Bird Drive Basin property, located about six miles west of campus, was originally acquired by the South Florida Water Management District (SFWMD) for the purpose of water management and conservation. As we explored — together with county and fair officials — 16 possible new locations for the fair, we learned that the SFWMD had placed the Bird Drive Basin property on the surplus land list. In November 2011, we began discussions with them about the possibility of relocating the fair to a section of that property.

We look forward to ongoing talks with Mayor Carlos A. Gimenez, county commissioners, state legislators and fair officials as well as a public process to find a win-win resolution that will allow this community’s only public research university to grow, prosper and provide access while preserving the fair and protecting our precious natural resources.

Mark B. Rosenberg,

president, FIU

 

 

An unusual legislative maneuver intended to push the accelerator on PortMiami’s Deep Dredge project, which has been indefinitely stalled pending an environmental review, could quickly encounter a speed bump.

The measure would force such reviews to be held within 30 days — but environmentalists question whether it will hold up in court. James Porter, a Miami attorney representing environmentalists challenging a state permit for the controversial $150 million dredging project, called the effort to rewrite rules and then apply them retroactively “extremely uncommon.”

The measure, attached to an important transportation bill, was expected to pass in the last hours of the session Friday. It would go into effect once signed by Gov. Rick Scott, potentially forcing an administrative challenge now set for August to be moved months earlier.

“From my perspective, this is highly prejudicial,” said Porter, whose clients include Audubon Society, Biscayne Bay Waterkeeper and Miami Beach fishing captain Dan Kipnis.

One of the measure’s supporters, House Majority Leader Carlos Lopez-Cantera, R-Miami, said he was not concerned about potential legal challenges, which he dismissed as “another stall tactic” from environmentalists. “The language doesn’t stop them from having the ability to be heard,” Lopez-Cantera said. “It just speeds up the process.”

Lopez-Cantera said he was confident the measure, which he said was drafted by Miami-Dade County attorneys and reviewed by the Florida Department of Environmental Protection, would hold up. The measure doesn’t specifically mention PortMiami but it was written to force a quicker administrative hearing.

Porter called the accusations of foot-dragging “hogwash.” The groups were unable to formally appeal the permit to allow the dredging until a draft version was issued in November. He said the request was filed within a 14-day window.

Timing of the dredging is important for port managers. With a tunnel under Government Cut to give trucks better access and a new freight rail system coming on line, the plan was to complete the dredging in 2014. That would open up Miami for a new class of mega-sized cargo ships at the same time when the Panama Canal, which is also undergoing an overhaul, will also be able to handle such cargo.

The project is a priority for both Miami-Dade Mayor Carlos Gimenez and the governor. In his first months in office. Scott took the unusual step of pledging to cover the $75 million federal share in the project, with hopes that Congress will pay the state back.

Environmentalists contend the state and U.S. Army Corps of Engineers haven’t set strict enough water quality standards to minimize silting damage surrounding sea grass beds and reefs and warn that weeks of blasting to deepen the channel could harm marine life. Port managers, as well as state and federal agencies overseeing the job, insist most impacts will be short-lived and minimal, pointing out a smaller dredging project a few years ago that left no lingering scars to surrounding areas.

Port Director Bill Johnson, who calls the dredging critical to an ambitious $2 billion port overhaul, said the plan had already been exhaustively and repeatedly reviewed. Port managers weren’t being the “bad guys,” he said, but trying to ensure the success of a project that could help produce thousands of new jobs.

“This is not something that has just been pulled out of the rabbit’s hat,” he said. “Thirteen years this project has been around. Let’s be honest, this is nothing new.”

But Kipnis, a charter captain and activist, said the preliminary permit Florida environmental regulators issued includes variances that will allow contractors to produce “mixing zones” that are five times larger and more turbid than typically allowed. Kipnis called the maneuver a blatant power play. “This is like old time Chicago politics.”

Florida International University came up short Thursday in its legislative push for a controversial deal that would have given the school 350 acres of wetlands bordering the Everglades.

An amendment to a water management bill that would have given FIU control of the state-owned tracts in West Miami-Dade was killed at the request of the governor’s office, said House Majority Leader Carlos Lopez-Cantera, R-Miami.

FIU had hoped to use the land in a land swap that potentially would have moved the Miami-Dade County Fair & Exposition to the wetlands site so the university could expand into existing fairgrounds land next door.

But Lopez-Cantera said the school could still secure the wetlands — purchased more than a decade ago for $3.7 million for a now-scrapped Everglades project — through on-going negotiations with the Florida Department of Environmental Protection.

He said aides to Gov. Rick Scott have said “they would work with FIU to help them achieve their goal.”

In a letter to lawmakers this week, Miami-Dade Mayor Carlos Gimenez objected to moving the fairgrounds to the site because it sits beyond the county’s urban development boundary, or UDB.

Environmentalists were pleased with the removal of the amendment. They broadly support the remainder of Senate Bill 1986, because it reverses budgets cuts ordered to the state’s water management districts last year.

Laura Reynolds, executive director of Tropical Audubon, was hopeful that FIU and the county would seek a new fairground site inside the UDB.

“We’re not against the FIU expansion. We’re not against the movement of the fair,” she said. “We’re against filling wetlands, particularly in that area.’’

The dredging project will have to proceed with all deliberate speed if the Port of Miami is to be ready to receive super-sized cargo ships coming through the Panama Canal. But the economic benefits expected to come to this region, and the state, should not come at the expense of another economic powerhouse for this community — Biscayne Bay.

The dredging, no doubt, will have an impact on the bay. Local groups of environmentalists and waterfront residents want a clearer idea of the extent from the Army Corps of Engineers and the state Department of Environmental Protection of whether the blasting and digging will harm sealife and water quality. The Corps’ past record of dredging the bay bodes well for contained and safe blasting. Still, it seems as if some elected officials are working to thwart the administrative-hearing process to fast-track the dredging.

The state House already has passed a bill that would impose a 30-day deadline for such groups to secure a hearing. The Senate should reject its version. It puts an unfair onus on groups seeking due process to line up expert witnesses and gather relevant data, while the government’s side likely has the information to make its case at its fingertips.

Already, the local groups have secured two mediation hearings, with an administrative hearing set for August. They’ve done it the right way, and state lawmakers and port officials should respect that.

By ANN ZIMMERMAN

Fresh-fallen snow may get all the credit, but many ski resorts can't keep their runs open without water that is piped in, often from miles away. Control of that water is the source of a battle between resort operators and the U.S. Forest Service.

Federal officials have until Monday to respond to a lawsuit by a trade group for the owners and operators of ski destinations, challenging a new directive that requires resorts operating on Forest Service lands to transfer water rights to the federal government.

 

The Vail Daily/Associated Press

A skier hits the powder on Vail Mountain in Colorado in February. A new federal policy on water rights affects such resorts on Forest Service land.

The group's suit, filed in U.S. district court in Colorado in January, alleges the change is an "uncompensated taking of private property" by the federal government. Ski-area owners contend it will diminish the value of the water rights they obtained "at great expense," according to the suit, and prevents them from selling those rights to anyone but another ski operation. The Forest Service says the new directive will guarantee the water will always remain with the mountain.

Ski resorts require considerable quantities of water for snow-making, as well as sanitation and cooking for guests, and they frequently gain access to extra water by securing water rights from private landowners or from the federal government, in accordance with state laws. The ski companies use tunnels, pipelines and reservoirs they build at considerable expense to transport the water—the amount, source and cost of which vary widely.

The ski-resort operators argue the regulation covers water rights they have purchased from both federal and private lands. But the Forest Service insists it only pertains to water rights obtained from federal lands, and the agency said it plans to change the directive's language to make that clear. Even so, the ski operators say they still wouldn't be satisfied.

The suit marks the latest turn in a decades-long push and pull between ski operators and the federal government over water rights. Such water fights are becoming increasingly common in many parts of the U.S., especially the Rocky Mountain states, where population growth is putting new strains on resources, and land ownership laws don't always automatically include the rights to the water there.

 

Associated Press

Ski resorts require considerable quantities of water for snow-making, as well as sanitation and cooking for guests.

The new federal policy on water rights, part of the permit a resort must secure if it operates on a mountain owned by the Forest Service, has alarmed the National Ski Areas Association, which estimates it affects 121 resorts in 13 states.

The ski association and its members are concerned that they wouldn't get fair market value for the water rights if there was only one type of buyer, rather than allowing numerous bidders. "We had no choice but to defend ourselves and our property by filing suit," said Geraldine Link, the group's director of public policy.

Officials with the Forest Service, part of the Department of Agriculture, said the aim of the revamped clause is to make clear that resorts cannot sell the water rights and leave towns and mountains high and dry.

"The issue becomes, what if the water becomes so valuable that the resort owner sells it off for a different use, and the communities dependent on the ski areas are no longer viable," said Jim Peña, associate deputy chief for the Forest Service. Resort owners say that situation hasn't happened, a point Mr. Peña conceded. "It is a Draconian solution to a hypothetical problem," said Ezekiel Williams, an attorney for the ski-resort trade group.

Mark Squillace, a law professor and director of the Natural Resources Law Center at the University of Colorado, said the resorts' claim that the government was taking their property "seems overwrought," given that the law ultimately gives the government the right to do what is deemed in the public's best interest. But he said "they may have a legitimate argument" in another claim in the suit, which also argues that the government didn't give the resorts sufficient notice of the change and an opportunity to comment.

Tensions have been brewing over ski-area water rights since the late 1980s, when legislation governing the ski-resort permits on Forest Service land gave the federal government ownership of water rights on federal land. That changed in 2004, when ownership of most of the water rights moved to the resorts.

Last fall, after news of the impending permit clause became public, the ski association and several congressmen asked the Forest Service to study the issue further and get public comment. The agency declined and began enforcing the directive in November.

Ski groups noted that under the new clause, the federal government would be permitted to sell off the same water it is worried the resorts will auction to the highest bidder. The Forest Service's Mr. Peña said his department plans to strengthen the language to make clear it doesn't intend to sell the rights or repurpose them for any use but skiing.

Write to Ann Zimmerman at ann.zimmerman@wsj.com

A version of this article appeared Mar. 7, 2012, on page A3 in some U.S. editions of The Wall Street Journal, with the headline: Water Fight Hits the Slopes.

A short-lived legislative attempt that would have made it easier to move Miami-Dade County’s urban development boundary died Monday morning in the Florida Senate.

The Senate’s rules chairman found that the proposal by Sen. Ellyn Bogdanoff, a Fort Lauderdale Republican, was out of order because it was not directly related to the legislation she was trying to amend.

Bogdanoff’s amendment would have required a simple majority of the commission to approve any change to the county’s comprehensive development — including any shift to the UDB. Bogdanoff proposed on Friday to add the language to a short bill, HB 4003, repealing an unfunded urban infill grant program.

Bogdanoff’s amendment was not germane to that bill, ruled Sen. John Thrasher, a St. Augustine Republican, saying it “introduces a new, unrelated subject that is not natural and logical.”

Miami-Dade Mayor Carlos Gimenez sent lawmakers a letter Friday opposing Bogdanoff’s effort as an attempt to undermine the county’s unique local powers.

Last week, the mayor proposed requiring an extraordinary supermajority — three-fourths, or 10 of 13 commissioners — to sign off on any changes to the invisible boundary that limits development bordering the Everglades.

The county currently requires a two-thirds majority — nine of 13 commissioners — to approve any change to the UDB.

When she presented her amendment Friday, Bogdanoff argued the few counties and cities that impose supermajority requirements on development trample on property owners’ rights.

A short-lived legislative attempt that would have made it easier to move Miami-Dade County’s urban development boundary died Monday morning in the Florida Senate.

The Senate’s rules chairman found that the proposal by Sen. Ellyn Bogdanoff, a Fort Lauderdale Republican, was out of order because it was not directly related to the legislation she was trying to amend.

Bogdanoff’s amendment would have required a simple majority of the commission to approve any change to the county’s comprehensive development — including any shift to the UDB. Bogdanoff proposed on Friday to add the language to a short bill, HB 4003, repealing an unfunded urban infill grant program.

Bogdanoff’s amendment was not germane to that bill, ruled Sen. John Thrasher, a St. Augustine Republican, saying it “introduces a new, unrelated subject that is not natural and logical.”

Miami-Dade Mayor Carlos Gimenez sent lawmakers a letter Friday opposing Bogdanoff’s effort as an attempt to undermine the county’s unique local powers.

Last week, the mayor proposed requiring an extraordinary supermajority — three-fourths, or 10 of 13 commissioners — to sign off on any changes to the invisible boundary that limits development bordering the Everglades.

The county currently requires a two-thirds majority — nine of 13 commissioners — to approve any change to the UDB.

When she presented her amendment Friday, Bogdanoff argued the few counties and cities that impose supermajority requirements on development trample on property owners’ rights.

On the heels of Miami-Dade Mayor Carlos Gimenez’s declaration last week that he will push to strengthen the urban development boundary, a countermove has sprung up in the Florida Legislature that would weaken the county’s protection against urban sprawl on its western and southern fringes.

State Sen. Ellyn Bodganoff, a Fort Lauderdale Republican, put forth an amendment to a House bill on Friday that would make it easier to shift the UDB by requiring a simple majority of the commission to approve any change to the county’s comprehensive plan, which guides development.

But Gimenez protested, calling the move an attempt to undermine the county’s unique local powers.

On Tuesday, at his first state-of-the-county address, the mayor said he would work to bolster the UDB by pushing to incorporate into the county charter a requirement that an extraordinary supermajority — three-fourths, or 10 of 13 commissioners — sign off on any changes to the invisible boundary that limits development bordering the Everglades.

The county currently requires a two-thirds majority — nine of 13 commissioners — to approve any change to the UDB.

Gimenez sent a letter Friday to each member of the Miami-Dade legislative delegation — along with Senate President Mike Haridopolos, R-Merritt Island, and House Speaker Dean Cannon, R-Winter Park — blasting the legislative move as an interference with Miami-Dade’s Home Rule Charter. He said it “potentially threatens precious wetlands.”

“They are trying to usurp local authority,” the mayor told The Miami Herald. “It strikes me as funny that soon as my state-of-the-county address calls for strengthening the UDB, this crops up.”

(An incarnation of the amendment surfaced Monday, a day before Gimenez’s speech.)

In the letter, the mayor said denying Miami-Dade residents the ability to require a supermajority vote to amend the UDB would be “denying the people of Miami-Dade County the ability to govern themselves on this issue of local concern.”

EMAILS CIRCULATE

Local environmentalists circulated emails over the weekend urging supporters to call Bogdanoff to oppose her amendment.

The most recent effort to move the UDB came two months ago. Miami-Dade commissioners, acting against the recommendation of county planners, sent the state an application by Ferro Investment Group II to allow business and office development on 9.9 acres designated as agricultural on the southeast corner of Southwest 167th Avenue and 104th Street, outside the UDB.

Ferro Investment’s pro-bono lobbyist is lawyer Miguel Diaz de la Portilla, also a Republican state senator from Miami. Diaz de la Portilla, a former county commissioner, said the project has no relation to Bogdanoff’s amendment.

“Absolutely not,” he said. “The Ferro application has nothing to do with that.”

Diaz de la Portilla noted he helped create Miami-Dade’s community councils to give neighbors a say on proposed development. He also backed requiring that a two-thirds majority of commissioners approve UDB-related applications if they burdened public services. That condition has since been eliminated, he said, adding that he favors Bogdanoff’s amendment to even the playing field for property owners.

By NATHAN KOPPEL

AUSTIN, Texas—The state's persistent drought has claimed its latest victims: rice farmers.

Because of low water levels in several lakes that serve as reservoirs here, officials said Friday that they wouldn't release irrigation water to farmers in three counties downstream that produce much of the rice in the state.

Associated Press

Ronald Gertson stands beside one of his John Deere tractors last month at his rice farm in Lissie, Texas.

The rice industry contributes about $394 million annually to the economy of the state, which produces about 5% of the nation's rice. The three counties—Colorado, Wharton and Matagorda—lie west of humid Houston and usually get enough rain to make rice farming practicable.

This is the first time in its 78-year history that the Lower Colorado River Authority, which is based here, has cut off water to farmers. The agency waited until the last possible moment—a minute before midnight on Thursday—to make its decision, hoping that water levels would rise enough to avert a cutoff.

The irrigation ban is not expected to affect the shelf price of rice, but it has forced some farmers to lay off employees and consider diversifying into other crops.

"This is my livelihood at stake," said Ronald Gertson, a Texas rice farmer who projected he would produce only about 40% of his typical rice crop this year.

"It sticks in the craw" of farmers, Mr. Gertson said, that the authority will continue to release water to golf courses and other recreational customers that pay higher rates for a guaranteed water supply.

In a statement, the agency said that farmers "pay considerably less for water than cities and industry. And therefore, their water is considered 'interruptible' during a severe drought."

Texans in the rice business said they could probably stay afloat this year, thanks in part to crop insurance, but they worried about another year of interrupted irrigation water.

"If this happens again, we'll be in much more trouble," said Dick Ottis, the president of the Rice Belt Warehouse in El Campo, Texas, which stores and dries rice. The warehouse plans to store more corn, wheat and other commodities this year, he said, but those crops do not produce the profit margins rice does.

"I have already let go about 20% of our employees, because I knew this day was coming about," Mr. Ottis said, adding that his family had been involved in rice farming for almost 100 years and had lived through droughts, but none this bad.

It always seemed like the good Lord would bless us with more rain," he said.

But there appears to be little relief in sight from the drought that still afflicts 85% of Texas. Temperatures are expected to be above normal this summer, said John Nielsen-Gammon, the state climatologist.

Rainfall levels are harder to predict, he said, but "we are in a dry stretch now, which will be worrisome if it continues. It reminds me of last year."

The water agency said it plans to find new supplies of water to avoid a repeat of this year's problems.

Farmers agree. "The development of new reservoirs is imperative," said Daniel Berglund, a 49-year-old rice farmer in Markham, Texas, who said he woke up at 1:15 a.m. Friday and checked to see whether the lakes, against all odds, had risen high enough to allow irrigation water to be released.

"Consumers only see grocery shelves stacked with food, floor to ceiling," he said. "This is an example of the risks we take as farmers. When you lose irrigation water, it stops everything," he said.

Write to Nathan Koppel at nathan.koppel@wsj.com

A version of this article appeared Mar. 3, 2012, on page A3 in some U.S. editions of The Wall Street Journal, with the headline: Texas Rice Farmers Lose Their Water.