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Item I01Board of County Commissioners Agenda Item Summary Meeting Date: June 20, 2001 Division: Board of County Commissioners Bulk Item: Yes 0 No ® DepatLulentz Geurye R. iveugent AGENDA ITEM WORDING: Reconsideration of the Board's action on the request to intervene in a law suit pending before the Florida Supreme Court concerning ad valorem tax imposed by the South Florida Water Management District to fund Everglades restoration. ITEM BACKGROUND: The South Florida Water Management District currently taxes the citizens of the Florida Keys and greater South Florida to clean up water pollution caused by the Everglades Agricultural Area (70,000 acres just south of Lake Okeechobee) that currently hash 455 000 acres in sugar production. Keys taxpayers send $1 million each year to cleanup the sugar industry in Palm Beach and Hendry counties. Under the Florida's constitution "Polluter Pays" citizen amendment — which was supported by 83% of Keys voters — the state must charge polluters (primarily the sugar industry)100% of the cost to clean up their own pollution mess, not the taxpayers. Concerned citizens including Mary Barley, Nat Reed and Sheila Mullins filed a lawsuit that is now on appeal in the Florida Supreme Count to force the District to bill the Everglades Agricultural area polluters for building the retention ponds. On March 22, 2001 Monroe County Commissioners took action supporting the District by filing an amicus curiae brief which essentially says the District should keep requiring citizens to fund pollution abatement in the Everglades Agricultural Area. PREVIOUS RELEVANT BOCC ACTION: CONTRACT/AGREEMENT CHANGES: STAFF RECOMMENDATIONS: TOTAL COST: MiDGEI1 ED: YES C3 I140 C! COST TO COUNTY: $ REVENUE PRODUCING: YES 0 NO 0 AMT PER MONTH: YEAR: APPROVED BY: COU ATTY 0 B/PURCHASING 0 RISK MANAGEMENT 0 APPROVAL: AYOR GE GE R. NEUG T DISTRICT II DOCUMENTATION: INCLUDED( ■ TO FOLLOW 0 NOT REQUIRED 0 DISPOSITION : l7CIV0H 11I CI `�� I I # Background Information The "Polluter Pays" Lawsuit Benefits Keys Taxpayers and the Environment ... So Why did the Monroe County Commission Side with the Sugar Industry? Florida Keys taxpayers send V million each vear to clean up sup_ar industry boliution in Palm Beach and Hendry counties. 83% of Keys voters say this is avmng - and so does the Piorida Constitution! Yet Monme County's commissioners voted to support the sugar industry. lY/hut'sgoing on? In a Conch Shell The South Florida Water Management District (District) currently violates the state constitution by taxing the citizens of the Florida Keys and greater south Florida to clean up water pollution -caused by the Everglades Agricultural Area (700,000 acres just south of Lake Okeechobee and currently has 455,000 acres in sugar production). Keys taxpayers send $1 million each year to clean up sugar industry pollution in Palm Beach and Hendry counties. Under the Florida constitution "Polluter Pays" citizen amendment that was supported by 83% of Keys voters the State must charge polluters (primarily the sugar industry) 100% of the cost to clean up their own pollution, not the taxpayers. Concerned citizens including Mary Barley, Nat Reed and Sheila Mullins filed a lawsuit that is now on appeal in the Florida Supreme Court to force the District to bill the Everglades Agricultural Area polluters for building pollution treatment facilities. On March 22, Monroe County Commissioners took the inexplicable step of siding with the District and the sugar industry against Keys taxpayers by filing a "Friend of the Court" brief with the Florida Supreme Court. In the brief Monroe County urges the Court to support the District's taxing policv requiring innocent citizens to foot the bill for pollution in the Everglades Agricultural Area, in violation of the constitution. The Board of County Commissioners will revisit this decision at its June 20, 2001 meeting in Marathon, between 10 a.m. and Noon, in an item introduced by George Neugent. What is "Polluter Pays"? "Polluter Pays" constitutional language: "Those in the Everglades Agricultural Area who cause water pollution within the Everglades Protection Area or the Everglades Agricultural Area shall be primarily responsible for paying the costs of the abatement of that pollution. For purposes of this subsection, the terms "Everglades Protection Area" and "Everglades Agricultural Area" shall have the meanings as defined in statutes in effect on January 1, 1996." "Polluter Pays" is about fairness and equity. It is part of the Florida Constitution mandating that polluters (primarily the sugar industry) in the Everglades Agricultural Area are legally responsible as a whole for 100% of the expense of cleaning up their pollution. • In 1992 a settlement of a federal lawsuit over dirty water entering Everglades National Park resulted in "The Everglades Forever Act" The Act employs two taxing mechanisms: a .1 mil tax on property owners within the 16-county `-Okeechobee Basin" and a'24.89 per acre tax on EAA lands classified as agricultural. (Note: The property owner tax is based on land value. The agricultural land tax is based on the number of acres owned.) • A citizens' initiative in 1996 resulted in 3 amendments being placed on the general ballot that election year. These amendments are commonly referred to as the Everglades Protection Amendments and one of the initiatives (No. 5) amended the Florida Constitution to make polluters in the Everglades Agriculture Area responsible for the cost of cleaning up their own pollution rather than innocent taxpayers within the Okeechobee Basin. In November 1996 Amendments 5 and 6 were overwhelmingly passed, with 68 % of Florida voters (and 82.6% of voters in Monroe County) voting for Polluter Pay Amendment 5. Why the Lawsuit? In March 1997 the Florida Supreme Court (considering Governor Lawton Chiles' request for an advisory opinion) advised that EAA polluters as a whole are 100% responsible for paying; thk, cost of abating Everglades Agricultural Area pollution under the terms of the 1996 "Polluter Pays" constitutional amendment. Since that opinion by the state's highest court more than four years ago, five sessions of the Florida Legislature have failed to take any action to implement this citizen -mandated amendment. As a result of this inaction, the District asserts it can continue to levy a tax on Okeechobee Basin landowners, including Monroe County, to clean up sugar industry wastewater. In 1998, a group of concerned citizens (including Mary Barley of Save Our Everglades, Nat Reed, Benjamin Wermeil and Sheila Mullins) filed a class action lawsuit that alleges they are being unconstitutionally taxed in light of the passage of the 1996 "Polluter Pay" Amendment to the Florida Constitution. The case has been winding its way through the Florida courts and in February 2001 the Florida Supreme Court took jurisdiction. This lawsuit (Barley, et aZ v. South Florida Water Management District) seeks to have the funding mechanism of the Everglades Forever Act declared unconstitutional. The Act, which deals exclusively with the construction of six retention ponds in the EAA, resulted in the largest share of the sugar industry's wastewater cleanup being paid for by the District's ad -valorem taxpayers. The suit has been certified as a class action; therefore all property owners in the 16-county South Florida Water Management District who are not EAA polluters will be a part of the case. Monroe County's taxpayers, who live some 200 miles south of the EAA, are clearly not EAA polluters. Why does it Matter to the Keys? The Everglades Forever Act outlines and embodies the funding mechanism for the Everglades Construction Project, dedicated exclusively to cleaning up the dirty water flowing from the Everglades Agricultural Area. Under the Act, the South Florida Water Management District is authorized to collect two taxes from property owners in the Florida Keys and 15 other counties of South Florida to pay for the Everglades Construction Project. Monroe County is nearly half a state away from and clearly not a polluter of the EAA. Not only is this unfair, it is unconstitutional under "Polluter Pay." 2 How does the Everglades Forever Act (EFA) tax work? Monroe County citizens have paid $700,000 and $1 million a year for this unconstitutional tax since 1997 when the amendment was adopted. A large portion of the tax collected has been spent on the construction of cleansing ponds to clean sugar's dirty water and, at the insistence of the sugar industry, to buy its property to build the ponds on. (Other Florida businesses must pay 100% of the costs to clean its own polluted wastewater on its own land.) Tax #1: Sugar plantation owners are paying an Agricultural Privilege Tax equal to $24.89 per acre. From 1994 to 2001, the District says the polluters have paid approximately $87 million. However, a special interest sheii game was piayed when passing the EFA and under so-called "Best Management Practices," a clause was added to reduce their share even more adding a credit for ag land owners only, which caps their per acre tax at $24.89 through 2013 and then reduces the tax to $10/acre. • Tax #2: Homeowners from Orlando to Key West are subject to a special ad valorem property tax, under the Everglades Forever Act and is listed on the Monroe County property tax statement as the "Everglades Construction Project" assessment. During the period 1994 to 2001, taxpayers living in the Okeechobee Basin (16 of the counties making_ up the District and known as the Okeechobee Basin) have paid more than $207 million under this assessment. • There is a basic fairness question here as homes and land historically "increase" in value but the number of acres farmed may rise or fall. The $207 million in ad valorem taxes paid by property owners constitutes vet another gift to the polluters who already receive $200 million annually in corporate welfare benefits (most of which goes to two Florida growers as a result of the Federal Sugar Price Support Program). In fact, Everglades Warrior Marjory Stoneman Douglas asked that her name be stripped from the Everglades Forever Act because of the inequity of transferring the maiority of the pollution clean up cost to the innocent taxpayers Why has the people's will been ignored? Why are Keys homeowners subsidizing the industry that is destroying the Everglades (and by extension, Florida Bay)? Why are Florida s citizens the losers in the amazing shell game that puts the special interests ahead of the public interest? Could it have anything to do with the nearly $25 million in campaign contributions (and untold amounts in lobbying fees) the sugar industry has expended in Tallahassee? What about the Keys? The greatest irony is that in the Florida Keys we desperately need to raise the funds to pay for our own water quality improvements. The Keys were excluded from the $7.8 billion Everglades 3 restoration program. So now we're forced to compete for tax dollars, and yet our local property taxes are sent "upstream" to pay bills belonging to big polluters who have big bank accounts. The Keys' economy and quality of life are inextricably linked to the health of our waters. Tourism and fishing, which fundamentally depend on a robust environment, are the engines that drive our local economy, generating more than $1.2 billion annually. More than 3 million tourists visit the Keys every year, supporting some 22,000 jobs - nearly half of our employment and income. In fact, the Keys have one of the highest tourist rates in Florida averaging 13 million tourist days annually. Regionally, thousands of businesses, nearly 500,000 jobs and $20 billion in revenues from Everglades tourism are jeopardized by the state's unwillingness to uphold the constitution and make polluters clean up their mess. Restoration of the Everglades (critical for saving Florida Bay), and improvement of local water quality are imperative - but won't be achieved if our public resources are continuously diverted to subsidize polluters. The District should redirect funding of Everglades Agricultural Area cleanup from the taxpayers to the polluters themselves, and ensure that the $200 million in District -wide tax payments since 1997 go directly to the other critical restoration projects. Why did the Monroe County Commissioners side with Big Sugar? On March 22, 2001, the Board of County Commissioners made the truly surprising move of voting to side with the District - against the local environment, against the State Constitution, and against their own taxpayers. The vote to file a "Friend of the Court" brief took place with very little information provided, and even less discussion. At least one of the commissioners who voted would like to see the issue revisited with greater disclosure of the pros and cons. One of the biggest "cons" ... it is possible that should this case be remanded back to the lower court to hear the facts, that the District could argue, and the lower court might agree, that Monroe County taxpayers should be thrown out of the class because they agree with the SFWMD and want to continue to pay this special tax to clean up EAA polluters pollution. There are those who claim that making polluters pay their fair share will somehow jeopardize Everglades restoration projects. This is completely untrue. "Polluter Pays" does not jeopardize restoration - it simply seeks proper and adequate funding. The court case won't halt Everglades funding - the District is still collecting both taxes and could continue to do so. They just won't be able to use the innocent taxpayers money to fund sugar pollution cieanup in the EAA. it`s worth noting that the Everglades Coalition has wholeheartedly endorsed "Polluter Pays" since 1992. What Happens Next? George Neugent will introduce a commissioner's item to revisit the "Friend of the Court" brief vote on Wednesday June 20 between 10 a.m. and noon at the BOCC meeting in Marathon. 4 Conservationists, businesspeople, fishermen, civic leaders, homeowners, and others will be working to ensure that the Commission rescinds its vote in favor of the sugar industry and immediately send a request to the Florida Supreme court to withdraw its brief. The Florida Supreme Court will hear arguments on the "Polluter Pays" lawsuit this August. The tact that the Court has accepted this case (an action seldom taken) is an indication that several of the justices likely agree with the citizens of Florida. For More Information Please contact Chris Ball of Save Our Everglades. Phone: 305/664-5598 . or Email: Joseph Garcia: igarcia@thebeach.net. thebeach.net.