Commentary

Petition drive seeks to give Florida residents a fundamental right to clean water

Lakes are now suing developers, a first for any U.S. court action

April 28, 2022 7:00 am

Ginnie Springs, 2017. Credit: John Moran.

Some people have accused me of being down on Florida because of all the bad stuff I write about — the shady politicians, greedy developers, and rapacious road-builders. You know, the usual suspects.

Nothing could be further from the truth! I revel in opportunities to highlight the many ways Florida leads the nation. If I had a big foam finger with “Florida No. 1” written on it, I’d be shaking it like a Polaroid picture every chance I got.

We’ve got the only state park system that’s won national awards four times. Our beaches frequently top the list of the best in the U.S.

And everyone knows we’ve got the world’s funniest police blotter items, such as “Florida woman pulls gator from yoga pants during stop.” That story inspired Dave Barry and Carl Hiaasen to join forces and record a song titled “She Had Turtles in Her Trunk and a Reptile in Her Pants.”

So, when I heard the news about our lakes, I was ready to do a fist-pump. They’re No. 1 in the nation! Woo-hoo!

For pollution, that is.

Cancel that fist-pump.

“In a new study examining water quality across the U.S., Florida ranked first for the highest total acres of lakes too polluted for swimming or healthy aquatic life,” WLRN-FM reported last month. “That means water can have high levels of fecal matter and other bacteria that can sicken people or low levels of oxygen or other pollution that can harm fish and other aquatic life.”

The study, by the Environmental Integrity Project, was based on Florida’s own reporting of its water quality progress (or lack thereof). Apparently, our report card is chock full of F-minuses.

Joseph Bonasia

That should tell you what a reeeeally terrific job the state Department of Environmental Protection has been doing protecting our environment over the past 20 years. I would suggest we throw the DEP a ticker tape parade for making us No. 1 but, judging by its record, the agency probably wouldn’t make anyone clean up the confetti afterward.

(I asked the DEP for a comment on the study. The response sounded like one hand clapping.)

With the state regulators apparently asleep when it comes to pollution, is it any wonder some amateurs are ready to try fixing things?

That’s why I wasn’t surprised last week to read in the Fort Myers News Press that there’s now a drive to pass a new constitutional amendment to say that in Florida, clean water is a right of all citizens.

“This is a legal tool whose time has come,” Joseph Bonasia, a Cape Coral retiree who’s spearheading the amendment’s petition drive, told me this week.

Charter change

To understand how this movement started, you have to go back to 2018, Orange County, and a passionate guy named Chuck O’Neal.

O’Neal runs a residential investment company and heads an environmental group called Speak Up Wekiva. I first encountered him in 2015, when he sued to stop the state’s first bear hunt in 21 years.

The suit failed, allowing the state wildlife commission to proceed with what was supposed to be a week-long hunt. The hunters killed 304 bears in two days, including 36 lactating mother bears. The public backlash meant that was the end of bear-hunts in Florida, although the bears probably would have preferred fighting it out in court.

As with the bear suit, O’Neal has seen his organization’s efforts to protect the Wekiva River from pollution run into repeated roadblocks. He got frustrated with the system, which — SURPRISE! — seems weighted toward the folks with all the money.

“We’re basically handcuffed here at the local level when it comes to protecting our water supply,” he told me in 2020.

Then O’Neal went to a two-day conference where one of the speakers was Thomas Linzey, senior legal counsel for the Center for Democratic and Environmental Rights. Linzey talked about a growing worldwide movement to grant human rights to natural features, such as springs and rivers.

O’Neal invited Linzey to his house. With some other environmental activists, they drafted a proposed change to Orange County’s charter that wound up on the ballot.

Meanwhile, though, Florida legislators, looking to protect their favorite contribu — er, I mean “constituents” — moved to stop the “rights of nature” gang from upsetting the balance of power in Florida. In this case, “balance” means the developers hold the steering wheel and sometimes turn it this way and sometimes turn it that way.

A sneaky counterstrike

Florida State Rep. Blaise Ingoglia. Credit: Florida House of Representatives

Rep. Blaise Ingoglia, a homebuilder (of course) from Spring Hill, filed a bill that would ban local governments from granting “any legal rights to a plant, an animal, a body of water, or any other part of the natural environment.”

Ingoglia delivered this oh-so-persuasive argument for passing his bill: “We are stopping local cities and counties from doing something that will hurt business, the taxpayers, the tax base.”

Yes, God forbid we hurt business, y’all — unless of course it’s a business like, say, a theme park that opposes something the governor supports. Then it’s “release the Kraken!”

The bill failed, but Ingoglia snuck the language into another bill, the “Clean” Waterways Act. Although supposedly based on the recommendations of Gov. Ron DeSantis’ Blue-Green Algae Task Force, the bill was so unlike those recommendations that environmental activists begged DeSantis to veto it and start over.

Spoiler alert! He did not. That noted champion of (pretending to be a fan of) the environment instead signed it into law.

Nevertheless, Orange County’s voters passed the charter measure by 89 percent. That’s a pretty clear indication that they prefer clean water to developers destroying a public asset to make a private profit.

A lake goes to court

Now O’Neal is using the charter change to sue a development that would destroy about 100 acres of wetlands. The lawsuit, which he filed on behalf of two lakes, a marsh, and a couple of streams that rely on those wetlands, marks the first suit of its kind in the country, according to The New Yorker.

The idea of nature having rights was first proposed in a 1972 law review article headlined “Should Trees Have Standing? ” by a University of Southern California professor with the ironic name of Christopher Stone.

Stone’s argument was endorsed in an opinion by Supreme Court Justice William O. Douglas, which prompted an attorney named John Naff to poetically spoof the idea in the American Bar Association Journal:

Great mountain peaks of names prestigious

Will suddenly become litigious.

Our brooks will babble in the courts,

Seeking damages for torts.

How can I rest beneath a tree

If it may soon be suing me?

In other words, not everyone’s a fan of the rights-of-nature movement.

For instance, a Seattle-based professional “Statler and Waldorf” imitator named Wesley J. Smith wrote a column for the National Review in reply to The New Yorker story on O’Neal’s lawsuit. His main argument was — hang on, let me make sure I’ve got this quote exactly right — “Bah.”

Smith then expounds on that: “What about the lost jobs if these development projects get scrapped, the consequences of preventing natural resources from being harnessed for human benefit, and the greater deleterious impact on humankind if environmentalist radicals are empowered with the legal standing to impose their ideology on the rest of us by court order?”

Somehow “lost jobs” wound up at the top of his list, yet “clean drinking water” gets not even a mention. You’d think a clean water supply would count toward Smith’s stated goal of “harnessing” natural resources for human benefit.

Mercy me!

According to O’Neal’s suit, filed in February, the development would “adversely impact the lakes and marsh who are parties to this action,” causing injuries that are “concrete, distinct, and palpable.”

In other words, they’d screw up the ecology. As Marvin Gaye would say, “Mercy me!”

How many times have you seen developments pave over Florida’s precious wetlands and obliterate an ecosystem? Now, the ecosystem is trying to fight back. But it’s an uphill battle, to say the least.

During the first hearing on the case Tuesday, an attorney for the DEP argued that that charter vote doesn’t matter because of Ingoglia’s skullduggery.

“It is not up to local governments to decide whether the state government has made adequate provision for the environment,” he told the judge, according to Politico.

If all those polluted lakes in Florida did have a voice, this is the point at which they all would have screamed, “Objection!” The judge has not yet ruled on the defendants’ motion to dismiss O’Neal’s case.

A fundamental right for humans

While the DEP’s attorney is busy babbling like a brook on behalf of a developer, Bonasia and his organization are pursuing something that’s both bigger and simpler.

Their group: Florida Right to Clean Water. As of April 11, they’d filed the paperwork with the state Division of Elections to try to amend the Florida Constitution in the 2024 election. This is their second try after a scattershot effort last year failed.

This time, rather than calling for lakes and rivers to have rights, their amendment would simply spell out that all of us — 22 million thirsty humans squeezed into the Sunshine State — enjoy the right to clean drinking water. If something threatens to pollute it, we humans can sue.

“It’s not giving rights to nature, but it’s spelling out that humans have a right to nature,” Bonasia told me.

Bonasia is a retired English teacher from New York, so he knows the importance of words. He emphasizes that the amendment wouldn’t just say that humans have a right to clean water, just like they have a right to post pictures of their meals on Instagram. (I post pictures of my shirts, because they tend to be more colorful than my food.)

Instead, the amendment will guarantee that clean water is a fundamental right, like life, liberty, and the pursuit of happiness.

900,000 signatures needed

Bonasia says his group knows it’s not going to be an easy battle.

They figure they will need $15 million to collect the necessary 891,589 signed and verified petition signatures to qualify for the ballot. They also have to convince those stone-faced justices on the Florida Supreme Court that the ballot language meets legal requirements.

Karl Deigert, a former charter boat captain who’s working with Bonasia, figures the group needs volunteers in all 67 counties collecting 30 signatures a day each to get enough for the ballot.

If you want to sign the petition, donate or volunteer, their website is https://www.floridarighttocleanwater.org/. But bear in mind that this is going to be a long, hard slog to 2024.

“We certainly anticipate opposition,” Bonasia said, rattling off expected objections: “Oh, that’s just those goofy Rights-of-Nature people,” or “It’s going to harm the economy!” or “It’s going to create a lot of lawsuits.”

algae bloom
Green slime blankets a south Florida canal. Credit: John Moran, 2018

I worry that their biggest opponent will be apathy. Some people think that as long as you can turn on a faucet and get something liquid to squirt out, the water supply is fine. They don’t notice the connection between pollution, toxic algae blooms, and lost tourism and fishing business.

Plus, there’s a long history of legislative conniving to undercut constitutional changes.

Florida’s voters have frequently gotten so ticked off at their legislators for not doing their jobs that they have approved constitutional amendments to force them to do what’s right. There was one to limit class sizes, another to require the state to spend a lot of money on buying environmentally sensitive land, and one to give ex-felons their voting rights back.

Each time, our lawless Legislature has subverted it somehow. Just this month, they ignored a 2010 citizen-driven constitutional amendment to require fair redistricting in order to pass a gerrymandered map demanded by our cheat-to-win governor.

In this case, Bonasia said, there’s nothing the Legislature can do. The amendment automatically takes effect if it passes. Meanwhile, enforcement is up to the citizens who figure they can’t do any worse at cleaning up our waterways than the DEP did.

If this passes, says Linzey, Florida will become the first state in the U.S. to approve such a measure. That means I’ll be shaking my foam finger again. Woo-hoo!

I do hope that Bonasia and his allies pull off this near-miracle. If they do, I bet we’ll see a whole bunch of our destructive developers dancing around to dodge all the lawsuits, hopping around like they’ve suddenly got turtles in their trunk and a reptile in their pants.

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Craig Pittman
Craig Pittman

Craig Pittman is a native Floridian. In 30 years at the Tampa Bay Times, he won numerous state and national awards for his environmental reporting. He is the author of six books, including the New York Times bestseller Oh, Florida! How America's Weirdest State Influences the Rest of the Country, which won a gold medal from the Florida Book Awards. His latest, published in 2021, is The State You're In: Florida Men, Florida Women, and Other Wildlife. In 2020 the Florida Heritage Book Festival named him a Florida Literary Legend. Craig is co-host of the "Welcome to Florida" podcast. He lives in St. Petersburg with his wife and children.

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