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Guest Commentary | Breaking an ‘insane’ cycle: A constitutional right to clean water

By JOSEPH BONASIA - Operations and Communications director FloridaRightToCleanWater.org | Mar 28, 2024

Joseph Bonasia

It was former Lee County Commissioner Ray Judah writing in The Breeze about water releases from Lake Okeechobee and noting that “the definition of insanity is doing the same thing over and over again and expecting different results,” that reminded me of Bill Murray, in Groundhog Day. His character relives the same day over and over until he changes his ways.

“Voters repeatedly elect politicians that pay lip service to protecting water quality,” Mr. Judah wrote, “while accepting campaign funding from local land statewide PACS… that in turn rely on substantial monetary support from Big Sugar.”

Mr. Judah, and many others, were saying the same thing in 2016 when I moved to Cape Coral.

In that same issue was an article about local officials opposing state legislation that restricts municipalities from regulating the use of fertilizer. “Clean water is of utmost importance,” they said. “Multiple forms of pollution, including agricultural run-off, sewage, and industrial waste harm our environment and economy. In all cases, preventing pollution is the most cost-effective solution.”

I’ve read nearly identical statements countless times since 2016.

When it comes to water quality in Florida, every day is Groundhog Day. To break this “insane” cycle, Floridians need to pass the proposed “Right to Clean and Healthy Waters” Constitutional Amendment.

Here’s how this commonsense law would work: Because state agencies, such as the DEP, cannot ignore the constitution and our fundamental rights, if they allow harm to Florida waters, they must have a compelling state interest for doing so–something more important than clean water. Even then, they must do all they reasonably can do to limit that harm to no more than what is necessary. If they don’t, we can take them to court and the court can make sure they do.

For example, because they harm the Caloosahatchee and other SWFL waters, we could sue the relevant state agencies to stop these massive water releases from Lake Okeechobee. The agencies would have to show that these releases meet a compelling state interest. This they can do, because protecting nearby communities from potentially disastrous flooding is clearly a compelling state interest. However, these agencies would also have to show that they have done all they can to limit the harm these releases cause.

When a fundamental right is threatened, courts must practice strict scrutiny, which means they must look as deeply into that threat as possible.

Upon scrutiny, the court would find that 32 water basins around Lake O do not meet water quality standards, with basin pollution levels being 5.7 to 20 times higher than law allows. It would find that hundreds of farmers are not adhering to Best Management Practices and state agencies are not enforcing compliance. It would find that most of the water in the storm water treatment areas is sugar industry water, not Lake O water. Exceptionally high lake levels would have to stand up to scrutiny, too.

What compelling state interest could justify these egregious levels of pollution, lack of enforcement, sugar water in treatment areas, high lake levels, and the threat they pose to our health, environment, and economy?

In the absence of a compelling state interest, the court could order agencies to correct these regulatory failures. Agencies would comply because they do not have the discretion to ignore the constitution. The result would be less water released and that water would be significantly cleaner and less harmful than it is now. With each passing year it would grow increasingly so.

Some people unnecessarily worry that this amendment will lead to a proliferation of lawsuits. That hasn’t happened in states that have had similar amendments for decades.

Others believe that taxpayer funded reservoirs, the “holy grail” of Everglades restoration, will solve our water problems. Mr. Judah, and many other experts, disagree, noting the reservoirs aren’t big enough to do the job.

We should, of course, try to vote for the right people into office and to pressure elected officials to do the right thing. But these efforts have too often proven ineffective. We need the additional protections that a constitutional right to clean and healthy waters can provide.

Efforts to qualify this amendment for the 2024 ballot came up short last year, so voters must sign the new petition to qualify the amendment for the 2026 ballot. Lee County voters who signed last time will soon be receiving new petitions in the mail. All other registered voters should go to FloridaRightToCleanWater.org and print out, sign, and mail the petition.

Joseph Bonasia is Operations and Communications director for FloridaRightToCleanWater.org.