To better appreciate the strengths of our “Right to Clean and Healthy Waters” Constitutional Amendment, note what Tom Palmer has to say about the “Right to Hunt and Fish” in “Amendment 2: If it ain’t broke, don’t fix it.”* Mr. Palmer is a Florida native with an award-winning career covering government and environmental issues.
First, here’s the ballot summary:
Fishing, hunting and the taking of fish and wildlife, including by the use of traditional methods, shall be preserved forever as a public right and preferred means of responsibly managing and controlling fish and wildlife. This section does not limit the authority granted to the Fish and Wildlife Conservation Commission under Section 9 of Article IV.
That summary is also the full text of the amendment, and its brevity creates problems. Mr. Palmer notes:
· “No one is sure how the term ‘traditional methods’ will be defined. Will it mean that using dogs to pursue prey such as black bears will be allowed again? Will it allow the resumption of leg-hold traps? Will it alter fishing rules? No one knows.
· "Any FWC rule in place could face a legal challenge if some individual or group thinks it limits traditional hunting or fishing methods as they define them. The taxpayer will be on the hook to pay to defend those suits.
· "Making hunting, fishing and the so-called traditional methods the preferred wildlife management approach ignores the fact that most of Florida’s wildlife species are not game species. The question is where does that put managing non-game species, such as the Florida grasshopper sparrow or painted buntings?
· "If approved by voters, its presence as an enumerated public right in the Florida Constitution may be interpreted to mean it could be used to justify the expansion of hunting in places where hunting is currently not allowed.”
Voters should not have to hunt and fish for answers in a law they are to vote on.
In stark contrast, the “Right to Clean and Healthy Waters” (RTCHW) leaves little to question.
For example, what does “clean and healthy” mean when it comes to Florida’s waters? The amendment provides a precise definition:
“’Clean and healthy waters’ are ‘waters free from harm or threat of harm…Indicators of clean and healthy waters include water quality safe for drinking, fishing, harvesting, and recreational activities; sufficient water quality, quantity, flow, filtration, and storage to sustain aquatic ecosystem services as well as thriving populations and diverse communities of native fish and wildlife; and stability of other ecological processes and functions.’”
What does “harm” mean, specifically?
“’Harm’ refers to an adverse effect on waters, while ‘threat of harm’ refers to the risk of such an effect, whether the effect is immediate or foreseeable. Adverse effects include those that are physical, chemical, biological, radiological, or a combination thereof. Such adverse effects on waters include but are not limited to contamination by pathogens, toxicants, or other injurious pollutants; nutrient loading or alteration of levels, flow, or storage of waters that deteriorates the health or habitat of native fish or wildlife; and introduction of exotic or invasive species or overexploitation of native species. Determination of such adverse effect or risk of such effect shall be based on the best available scientific evidence."
What about “waters”? A case could get tangled up in this issue alone. The amendment specifies that “’Waters’ refers to the aquatic ecosystems of aquifers, bays, creeks, estuaries, estuarine systems, lagoons, lakes, rivers, riverine systems, springs, streams, wetlands, and intracoastal and coastal waters…including fresh, brackish, saline, tidal, surface, ground, and underground water associated with these waterbodies.”
With this fundamental right, who can sue and be sued? Can you, for example, be sued for fertilizing your lawn? No. The amendment states that a “person” can sue a “state executive agency,” not an individual, business, or corporation, and provides legal definitions of “person” and “state executive agency."
Is this right enforceable without the aid of legislative implementation? Yes. The amendment states it is self-executing. An amendment that isn’t self-executing opens the door to legislative undermining, as our legislature has done in the past.
Mr. Palmer also questions the purpose of Amendment 2 when the right to hunt or fish “isn’t under any kind of threat that would justify this amendment. An unsuccessful referendum in Oregon has been cited as an example of potential threats, but nothing like that has ever been seriously considered in Florida.”
No question surrounds the purpose of our RTCHW Amendment.
“Clean and healthy waters promote important public interests, including health, prosperity, and quality of life; safe drinking water; scenic beauty and recreational activities; fishing and harvesting; thriving populations and diverse communities of native fish and wildlife; aquatic ecosystem services including carbon storage, water filtration, and risk mitigation for drought, erosion, and floods; and economic interests, business opportunities, and enjoyment of property throughout the State. The purpose of this [Amendment] is to advance these public interests pursuant to the people’s inherent political power in Article I, Section 1 of this Constitution.”
Our waters are in crisis. Florida's regulatory system is broken and needs fixing.
The "Right to Clean and Healthy Waters" Constitutional Amendment can help fix it.
*"Amendment 2: If it ain't broke, don't fix it," by Tom Palmer, published by The Invading Sea.
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