Capitol Watch Week 3

Date 02/01/2012

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Capitol Watch Week 3               By Jay Liles and Preston Robertson 

Week of January 23, 2012

State regulation of water pollution (Numeric Nutrient Criteria Standards)

In 2009, the U.S. Environmental Protection Agency (EPA) determined that Florida’s regulation of nitrogen and phosphorus (“nutrients”) pollution in Florida waters was insufficient to protect water quality as required by the federal Clean Water Act. As a result, in 2010, the EPA finalized rules that impose federal numeric nutrient criteria on lakes and springs throughout the state. However, the Clean Water Act allows for withdrawal of the EPA rules if the state adopts rules that are consistent with the Clean Water Act. The Florida Department of Environmental Protection (DEP) has proposed numeric nutrient criteria rules to replace the EPA’s rules, but the EPA cannot formally approve DEP’s rules until DEP adopts the rules and the rules are ratified by the Legislature or are exempted from ratification. The rule is presently being challenged in the Division of Administrative Hearings (DOAH) on the grounds that the proposed rules “are not designed to protect state waterways from the adverse impacts of nutrient enrichment. Instead, these rules go so far as to prevent a finding of impairment.” Florida Wildlife Federation, Sierra Club, Conservancy of Southwest Florida and the St. Johns Riverkeeper, among others, are parties to this litigation.

HB 7051
would allow the Florida Department of Environmental Protection to implement a state nutrient criteria rule without ratification by the Florida Legislature, thus exempting the DEP rules on nutrients from ratification and thwarting efforts to have clearly defined and enforceable regulation. The bill is on the House Calendar to be voted upon by the entire House after approval by the State Affairs Committee this week.

Advocates for numeric nutrient criteria, including FWF, argue that polluters are pushing the costs associated with their pollution onto the backs of taxpayers and diminishing the property values of those affected by polluted runoff. Invariably we pay more to clean up a polluted river, lake or stream after it has been degraded.

The Senate Committee on Environmental Preservation and Conservation agreed to a companion bill (SB 2060) which was approved by the Committee on Monday of this week.

Extending Water Use Permits

The House Select Committee on Water Policy unanimously approved a committee bill that would extend Consumptive Use Permits (CUPs) for water withdrawals from 20 to 30 years for alternative water supply projects. Current state law provides a maximum 20 year permit limit.

Utilities and industry groups, in support of the bill say extending the permit period is necessary to encourage utilities to secure long-term funding for alternative water projects. They argue that competition for fresh water supplies will require construction of new reservoirs and aquifer storage projects.   Advocates for the environment and conservation urged the committee to use caution in extending the permit period. Without appropriate safeguards, water for wetlands, floodplains, estuaries, and other downstream users may be threatened. Audubon of Florida Executive Director Eric Draper urged the committee to consider applying the same "public interest" test to public water supply projects that is required of other water uses. The bill, as proposed, provides little if any safeguards for public input, or challenges to permit approvals.  The bill has yet to be assigned a number or committee of reference.

Oil and Gas exploration on State Lands

HB 695,
which would encourage oil exploration and drilling on state lands, was approved by the House Energy & Utilities Subcommittee. Under the bill, the Cabinet, which oversees the use of state lands, must approve any such public-private partnership agreement for oil and gas drilling proposals. Some committee members raised questions about whether sensitive environmental lands could be protected and why state land leases wouldn't be open to a public bidding process once oil or gas was discovered. The bill, in its amended form, was approved by an 11-1 vote. The bill has two more committee stops.

The committee also held a workshop on Agriculture Commissioner Adam Putnam's proposals for energy legislation. Putnam's proposal would allow utilities to charge their customers more for up to 75 megawatts per year or one percent of their power generation, whichever is less.  Those of us who have been encouraged by the move of energy policy to the Commissioner’s office see his initial proposals as rather tepid. To concerns that these proposals do not go far enough to encourage expanded renewable energy production, Chair Plakon had this to say, "I think to get the ball rolling on a comprehensive [energy] policy -- though perhaps it is not as much as some might like -- it's important to get something going."

In a related event, the committee approved HB 1391, which would allow Florida Power & Light to charge residential customers an additional 5 cents per month for a 75-megawatt solar power plant being built at Babcock Ranch located in Charlotte and Lee counties. Developers of the project first proposed the solar array in 2009. However, for the past three years the Legislature has not approved bills that would allow utilities to charge more for renewable energy projects.

Land Giveaway

Two legislators have proposed bills (House Bill 1103 and SB 1362) that deal with the definition of the Ordinary High Water Line for non-tidal, freshwater rivers and lakes. This is the line that separates public lands (known as sovereign submerged lands) and private adjacent lands. The public has the right to fish, boat, hunt and other wise enjoy the waters below the Ordinary High Water Line. The water level of rivers and lakes changes throughout the year. Florida law now states that sovereign submerged lands go up to the Ordinary High Water line. This is defined as the highest point of the water up the bank in the high water season. Unfortunately, the two bills in issue would change this definition and lower this boundary. This will happen because the bill’s new definition places the “high water mark” at the water level when the water body is in an “ordinary” condition. “Ordinary condition” is not high water. It is a lower level that exists most of the year. Additionally, the bills also seem to allow the creation of private land from sovereign submerged lands if a person can grow a garden or other crops on it when the water is low. Passage of these bills would mean the shrinkage of sovereign submerged lands and thereby diminish public lands and waters that are presently used by Florida’s millions of resident anglers and boaters and by job-creating tourists, to the benefit of the relative few.

Please contact the following Legislators and tell them to OPPOSE HB 1103:;;  and  

Or call Speaker Dean Cannon at 850-488-2742.

Tags: Capitol Watch, 2012 Legislative Session, Florida

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