Tuesday, August 25, 2015

Gov. Rick Scott and Florida GOP: the public interest be damned ... by gimleteye

With the obstruction of the law in fulfilling the mandates of Fair Districts, Gov. Rick Scott and the GOP-led Florida legislature have shown a complete disregard for one of the most important provisions of democratic protections. Their failure to follow a Florida Supreme Court order to draw Fair Districts is not an isolated example: it is the normal practice of a ruling elite that is impervious to criticism.

Consider the following. The state's regional water management districts are powerful entities, supervised by appointees of Gov. Rick Scott.

Although water district governing boards have always skewed towards Big Ag and developers, Gov. Scott takes the micromanagement of district affairs to be a crucial way to enforce loyalty of regulated industries. It is a signature example of one hand washing the other, far from the view of the public.

According to the following news report, today the governing board of the Southwest Florida Water Management District could vote to ignore an administrative law court order, objecting to a permit for mangrove destruction.

This issue is properly filed in the folder: "the devil is in the details". Gov. Scott has proven nearly as skillful in papering over his tracks with those details as he was in private life, where he accumulated a fortune -- buying his way to the governor's mansion -- gaming the medical reimbursement system. Smart, yes. "Good for the public" never enters in the equation.

There are no overarching principles to guide this governor's sense of democracy, other than what is good for a narrow band of special interests who are alternately giddy and compliant, so long as their profits are protected.

In other words, the public interest be damned.

Permit Recommendation Denying Mangrove Destruction for Neal’s Perico Development Could be Approved by SWFMD on Tuesday
Bradenton Times, August 22, 2015
by Staff Report

BRADENTON — Pat Neal’s development needs a permit by SWFMD to destroy mangroves in order to build four homes on Perico Island. SWFMD approved a permit for destroying the high quality mangroves on the island, adjacent to the pristine Florida waters of Anna Maria Sound. Though an administrative law judge has recommended that the water management district's board deny the order, the board will cast a final vote on Tuesday.

Joe McClash, 22-year Manatee County Commissioner and TBT publisher, challenged the permit and was later joined by FISH, Manasota-88, Suncoast Waterkeepers and Sierra Club. A hearing was held in February, and the recommendation from the judge was to deny the permit. However, final action goes back to the agency that issued the permit: SWFMD. The governing board of SWFMD has a recommendation for approving the permit against the facts determined by the judge.

It is rare to see permits challenged, and it is even more rare to have almost every environmental organization united in a cause. However, Manatee County has a strong population of vocal critics who loathe irresponsible development. They value the area's environment and have a history of holding developers accountable to following the rules. In fact, such citizens and environmental organizations have often been the last hope when developers disregard those rules.

Neal has made the battle an expensive one by using legal maneuvers that ratchet up costs on both sides, seemingly trying to win a war of attrition along the way. SWFMD, an agency that ostensibly exists to protect our vital environmental resources, has been seen as increasingly willing to bend to the will of developers. Fellow Manatee County developer Carlos Beruff of Medallion Homes serves on the water management district’s board. Critics point to board members like Beruff (the board’s former chair) and note that having himself proposed projects such as Long Bar Pointe, an intense development of environmentally sensitive land on Sarasota Bay in SW Manatee County, it seems unlikely such members are going to vote against other like-minded developers, especially if they do business with them.

Neal’s history of destroying mangroves and wetlands to develop houses was recognized by the administrative law judge that recommended SWFMD deny the application. Under a requirement for the permit, the judge cited that “reasonable assurances were not provided that the proposed project is clearly in the public interest because of the adverse cumulative effects on the conservation of fish and wildlife, fishing and recreational values, and marine productivity of Anna Maria Sound, an Outstanding Florida Water.”

The ALJ added, “The loss or reduction of storm buffering and erosion prevention functions performed by the mangroves at Perico Island cannot be mitigated for at the Tampa Bay Mitigation Bank.”

That mitigation bank is about 17 miles away and not even in Manatee County.

Additionally, the judge determined that “local fish and wildlife, and local biological productivity would be diminished by the proposed project.” The judge wrote, “The proposed project would cause fewer impacts to wetlands if the fill area was reduced in size, which was not shown to be impracticable. Reducing the size of the fill area would not cause the project to be significantly different in type or function. Land Trust did not demonstrate that it implemented reasonable design modifications to eliminate or reduce impacts to wetland functions.”

All of these facts determined by the judge are part of the rules of Section 10.2.1 of the Applicant's Handbook, Volume I, which states that “in reviewing a project the District is to consider practicable design modifications to eliminate or reduce impacts to wetland functions.”

The facts determined by the judge also included the precedent setting nature of the project as required, citing “Land Trust could propose a similar project on another part of its property on Perico Island. Anyone owning property in the area which is designated for residential use under the City of Bradenton's comprehensive plan and bounded by wetlands could apply to enlarge the buildable portion of the property by removing the wetlands and filling behind a retaining wall. When considering future wetland impacts in the basin which are likely to result from similar future activities, the cumulative impacts of the proposed project would result in significant adverse impacts to wetland functions in the area.”

The judge concluded the following in his order, which, so far, Neal has convinced SWFMD to disagree:

“Although not acknowledged by the District, this is an unusual project. It resembles the kind of project that was common in the 1960s and 1970s in Florida, before the enactment of environmental regulatory programs, when high-quality wetlands were destroyed by dredging and filling to create land for residential development. In all the reported DOAH cases involving ERPs and mitigation of wetland impacts, the circumstances have involved impaired wetlands and/or the restoration or permanent protection of other wetlands on the project site. No case could be found where an applicant simply paid for authorization to destroy almost an acre of high-quality wetlands and convert it to uplands.”

McClash said disagreeing with the judge defies common sense.

“Simple facts supported by expert witnesses during a three-day hearing resulted in a clear recommendation to deny this permit,” said McClash. “The challengers should prevail. They fought the giants and won, but that is not likely to be the outcome since SWFMD has determined the judge and the citizens are wrong and that Pat Neal should get his permit. However, that action violates the laws of not only the environmental permit requirements but the hearing challenge rules and Statutes. SWFMD is a politically-appointed board by Governor Scott who receives hundreds of thousands of dollars packaged by Neal at election time, while one of Neal’s cohorts sits on the board. That doesn’t pass the smell test.”

The law states:
Pursuant to Section 120.57(1)(l), F.S., an agency may adopt an ALJ’s recommended order as the final order of the agency. This section also provides that an agency may not reject or modify findings of fact in a recommended order “unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.” This means that if the Governing Board ultimately decides to reject a finding of fact in the Recommended Order, it will have to do so Packet Pg. 228 Item 25 based on a review of the transcript of the administrative hearing and the exhibits admitted into evidence at the hearing.

Section 120.57(1)(l), F.S., also provides that an agency may reject or modify conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction only if the agency states “with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule” and makes “a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified.” The statute also provides that “[R]ejection or modification of conclusions of law may not form the basis for rejection or modification of findings of fact.”

“What purpose would a hearing serve if the agency that is challenged by its citizens for an action they feel deserves to be changed can twist the facts to overturn an unbiased determination and do what they wanted to do in the first place?” asked McClash rhetorically. “The laws and rules were intended to prevent this! However, as we just witnessed a few months ago with Neal’s development at Robinson Farms, which had been denied three times, Neal usually wins even when he loses."

The cabinet’s decision has been appealed in the district court of appeals and has yet to be decided.

“The overall issue is one of fairness and respect,” said McClash, “something that has been lost by those blinded by greed and power. Our government is intended to serve the citizens, and yes, politicians will always, always get money from developers. But those politicians and politically appointed boards, in the past, balanced the political favors expected with the respect for the citizens. That balance is gone today.”

McClash said the overall climate of government and its bureaucracy in Florida is not conducive to citizens being treated equitably.

“The employees of SWFMD have seen their peers who have held developers accountable removed from their positions. They live in fear of losing their paycheck, so until the signal from their governing board changes, the rules will continue to be ignored. However, this Tuesday the Governing Board can give that signal by denying Neal’s Permit (Land Trust 97-12), and follow the law as it was intended.”

The SWFMD board’s hearing is scheduled for 9 a.m. at its Tampa Service Office, 7601 US Hwy. 301, in Tampa. To give input, click here to email SWFMD.


Anonymous said...

From Tampa Bay Times today, "When the Southwest Florida Water Management District approved Neal's permit to chop down the mangroves and fill in the wetlands, environmental groups challenged that decision in the state's administrative hearing process — and won. A judge ruled that the permit should be denied.

But on Tuesday, the board commonly known as Swiftmud rejected that recommendation. The board member who made the motion was Carlos Beruff, another Manatee County homebuilder who has done business with Neal in the past."

EOM you are right: this is the most corrupt Florida government ever.

Alexandria Larson said...

The scum in this State is just horrible. Every elected official needs to be in federal prison now. The board members of every water management district needs to resign and then go to prison. Sadly the masses of asses continue to let these bozos run the show.Apathy is our enemy.No one bitches until the bulldozer is in their yard. Maybe Mother Nature will step in before Florida is gone.

Anonymous said...

Sad situation. More of us need to attend Water Management meetings and to alert media, write/call representatives. Raise hell!