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Plan crimps far-flung challenges

The bill would keep people from objecting to certain environmental permits unless "substantially affected.''


© St. Petersburg Times, published May 4, 2000

For nearly 30 years, any Florida resident has had the right to challenge pollution or development that might harm the environment, regardless of whether the pollution or development was occurring in that resident's own back yard.

Environmental groups have repeatedly made use of that legal right in battling everything from offshore oil drilling to cement plants near state parks.

But now the Legislature is on the verge of imposing new limits on who is allowed to fight against pollution and development permits.

Under a bill already passed by the House, and which could come up for consideration in the Senate today, the only people or organizations with the power to challenge permits from state agencies are those who are "substantially affected" by the pollution or development allowed by the permit.

The House passed that bill 106-11 late Tuesday, despite warnings from U.S. Environmental Protection Agency officials that changing the law could put some of the state's permitting programs at odds with the federal Clean Water Act.

EPA officials would not comment last week on what the consequences might be for Florida if the bill becomes law. But some environmental activists predicted the EPA may suspend the state's power to issue dredge-and-fill permits, forcing developers to go to the federal agency instead.

The bill's House sponsor, state Rep. Allan Bense, said he is not worried the EPA will penalize the state, and he believes changing the law would make it fairer to property owners.

"Folks from a long way away have no dog in the hunt, that are just objecting for the sake of objecting, those are the ones we're trying to rein in," the Panama City Republican said. "I think if you're in Dade County and I'm developing something in Escambia County, in Pensacola, and someone wants to object just to object, I don't think that's right."

Terrell Arline of the group 1,000 Friends of Florida, which has used the current law to battle urban sprawl, called Bense's bill "just another way to attack the environmental movement."

The bill has strong backing from business, homebuilders and agriculture interests, according to Bense. Opponents include not only environmental groups but also the Florida Bar.

The current law dates back to 1971, a time when Congress was passing new environmental protection laws like the Clean Air Act, the Clean Water Act and the Endangered Species Act. Florida lawmakers created the Environmental Protection Act, granting "any citizen" legal standing to challenge state agencies that might be violating "laws for the protection of the air, water and natural resources of the state."

In a letter to lawmakers last month, Manley Fuller, president of the Florida Wildlife Federation, noted that his organization had used the Environmental Protection Act to battle everything from offshore drilling to pollution in the Withlacoochee River.

Fuller warned that making it harder to fight those battles "will certainly not lead to better protection of human health and the environment."

The bill the House passed would limit the people with standing to challenge permits to only those who are "substantially affected." The bill says environmental groups would have to show that "a substantial number of its members have substantial interests" that would be affected by the permit. Those groups could do that by showing that their enjoyment of clean air and water had been diminished.

According to Bense, that means that if a group like the Audubon Society, which is based in Central Florida, wants to object to a development in his native Bay County, Audubon cannot simply jump into the battle and file a legal challenge.

However, Bense said, "members in Bay County can still object." Even someone from outside Bay County who takes frequent canoe trips in that county could have standing to object to a permit there, he said.

Bense said he became interested in changing the law because a Bay County couple, whom he would not name, ran into trouble subdividing their property after someone from elsewhere -- he could not recall where -- objected to the effect the development would have on a wetland area.

"The folks that objected had no business objecting," Bense said. "Ultimately (the couple) got their permit, but it took them an extra nine or 10 months and they had to hire a lawyer."

Bense said he had amended his bill to satisfy environmentalists' concerns. However, Audubon Society Senior Vice President Charles Lee said the bill is still "objectionable."

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