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"Man let 'em grow;' the state of Florida mangrove laws.

This article is derived from the 1997 Frank Maloney law student writing contest's winning paper, which addressed the 1995 Mangrove Trimming and Preservation Act.[1]

Mangroves[2] are trees or bushes, usually grown between the high water mark and mean low tide. They grow along tropical and subtropical shores and are found in estuaries. The mangrove ecosystem[3] is a highly complex natural system involving nonliving (abiotic) and living (biotic) components.[4] Mangroves develop in estuaries, behind spits or off-shore lands, and in protected bays with shallow water or, in decreased amounts, on coral cays.

According to Florida legislative findings, there are over 555,000 acres of mangroves now existing in Florida.[5] Of this total, over 80 percent are under some form of government or private ownership or control and are expressly set aside for preservation or conservation purposes.

Furthermore, the legislature finds that many areas of mangroves occur as narrow riparian [6] mangrove fringes that do not provide all the functions of mangrove forests or provide such functions to a lesser degree, and that waterfront property owners can live in harmony with the mangroves.

Background

During the late 1800s and in the first half of the 1900s, Florida's public policy favored the development of waterfront areas, the draining of cypress swamps, mangrove areas, and marshlands, the filling in of low lying and submerged lands, channelization of rivers and streams, and the regulation of water levels within lakes, rivers, and other water bodies. Heading into the 21st century, the state's public policy has shifted 180 degrees.[7] Development is highly regulated and limited in environmentally sensitive areas. Wetlands are valued highly as habitats for many animal species and as water recharge areas. Development has put a huge strain on water quality.[8]

In 1984 the Florida Legislature enacted its first mangrove statutes. The following year the Department of Environmental Regulation adopted the first mangrove rules. Up until 1994, many revisions attempted to clarify which types of mangroves could be trimmed and to what heights, where trimming would be allowed, and what types of permits would be required. Property owners claimed that the statutes and rules were too complex and confusing. The riparian property owners were so adamant that many be Mangrove, which found legislative sponsors for its own mangrove legislation. Likewise, the Department of Environmental Protection continued to experience difficulty in enforcing these laws, and formed a committee of 12 members called the Mangrove Technical Advisory Committee to develop a draft rule and legislation.

In April 1992, Nathaniel Reed, a well-known environmentalist and a former undersecretary of the U.S. Department of Interior who lobbied for environmental causes under five Florida governors, received a notification of noncompliance from the state for pruning mangroves at the Jupiter Island Golf Course, in violation of two state rules. For each offense, or for illegally trimming the mangroves, Mr. Reed, as the owner of the property, could have been fined up to $10,000 a day. The following May, Reed and John Morrison of the John's Island Property Owner's Association requested an administrative hearing to determine whether the rules governing mangrove trimming are valid, and to propose that the state develop one simple rule.

Their petition stated they were riparian landowners who had a statutory right to selectively trim mangroves in order to enjoy coastal views as provided in F.S. [sections] 403.931(5).[9] They stated that mangrove rules imposed severe regulatory constraints on the use and enjoyment of coastal view and other aesthetic qualities associated with their riparian ownership. Additionally, the petition listed important points in which the rule was either arbitrary and capricious or lacking scientific basis. The legislation was held to be an invalid exercise of delegated legislative authority.

The 1995 Act[10]

The Reed decision led to the 1995 Mangrove Trimming and Preservation Act, which substantially changed Florida's mangrove protection statutes. The act repealed existing statutes that regulated the trimming of mangroves and replaced them with several new statutes that reduce the amount of permitting and paperwork required for that activity. Distinguishing between "trimming" and "altering" mangroves, the act allows trimming activity with or without a permit, depending on the location of the mangrove. On the other hand, altering a mangrove (removing or cutting the plant so much that it dies or is defoliated) is a prohibited activity, unless a permit was issued. The act does not require a permit for trimming on private lands. Similarly, certain public lands not set aside for preservation or conservation purposes do not need a trimming permit. Riparian property owners may trim mangroves on public lands fronting their property to a depth of 75 feet, measured waterward from the trunk of the most landward mangrove tree and in a direction perpendicular to the shoreline.

The act preempts local governments from exercising their home rule powers to adopt stricter standards within the riparian fringe. The DEP must determine that the local government is capable of administering and enforcing the state regulations if it is to approve a request for a delegation. Local governments can impose stricter standards from trimming and altering mangroves outside the riparian fringe areas. On the other hand, "[U]nder no circumstance may they impose requirements which limit the exemptions listed within the bill or which preclude the issuance of permits for such activities." The act also employs mitigation requirements providing that property owners and others under contract to them must replace destroyed mangroves.

There is a tremendous fiscal impact on state agencies and state funds. Under this new act, few mangrove trimming activities would require a permit. It is likely that the state would lose revenue from the permit fees. According to the Department of Environmental Protection, the fiscal year 1993-94 generated $128,750 from permit fees, which paid for the program's staff and expenses. Likewise, local governments which collected mangrove permit fees would have substantially diminished revenue. There is a potential for riparian property values to rise due to the less complicated requirements and procedures for trimming mangroves, which in some areas have grown high enough to block property owners' waterfront views."

The Controversy

The legislation had many opponents. Metro-Dade County's Department of Natural Resources (DERM) stated it would: 1) authorize alteration of mangroves that will kill individual trees and seriously impact the habitat value, productivity, and other functions of mangroves; 2) allow extensive trimming of mangroves, including mangroves on state-owned lands, without government authorization; and 3) strictly preempt local regulation of mangroves and prohibit stricter local rules. This third complaint was the most controversial. Dade County managed mangroves for more than a decade through local government regulatory and restoration programs. DERM stated that the bill was shortsighted, benefited a very limited number of Floridians, established an unacceptable precedent of preempting local authority to determine how best to manage community resources, while damaging ecosystems that all of Florida depend upon. DERM believed that local governments with adequate environmental programs are best situated to determine appropriate levels of mangrove protection and respond to regulated interest in their community.

Concurring with DERM, the Dade County Board of County Commissioners wrote resolution R-301-95, which strongly opposed the act, stating, "The proposed act does not preserve mangroves but actually will result in the destruction of individual trees and habitat value of mangrove on private and public lands because it contains broad, arbitrary exemption and standards insufficient to protect the mangroves," and it "reduces the level of protection for mangroves in Aquatic Preserves of Outstanding Florida Waters and will fail to protect mangroves within parks and conservation areas, including Biscayne National Park, created to preserve unique national resources of Biscayne Bay," and "[P]re-emptive language is unacceptable and fails to recognize the authority of local governments to determine the needs and best interests of the local community."[12]

Even though there was tremendous opposition, the Florida Legislature passed the Mangrove Trimming and Preservation Act. Prior to the act, many complained that DERM made it confusing and difficult to get a mangrove trimming permit.[13] Critics said the ordinances were so complicated and mind-numbingly detailed and unrealistic that backlash was almost inevitable.

Besides the uproar of environmental complaints and the fear of big government, there was a lot of confusion regarding the act itself William Vorstadt, a state supervisor in Tampa, said, "The way the statute is written, it's hard to investigate anything and it's difficult for the public to understand the new rules."[14] After enactment of the act, the residents of one condominium trimmed mangroves that had been up to 30 feet tall to a splintered hedge.[15] Many were extremely concerned for the water fowl, because they have no other place to nest.

The resistance did not cease. Many people agreed that the new legislation fostered trimming of mangroves to improve the view for waterfront property owners. Similarly, some of the citizens' greatest apprehension was that mangrove protection would be taken away from the state and local government. Not all were against the new act. Landowner Thomas J. Ewing of Bradenton said,

The new mangrove law is a good one aimed at reversing intrusive regulation by bureaucratic agencies and returning the trimming to their taxpaying property owners who for years have maintained and nurtured their mangrove fringe .... [E]lightly percent of all mangroves in Florida are now in conservation areas not subject to pruning.... [T]he empirical evidence supplied by scientists, horticulturists and tree propagators overwhelmingly shows that mangroves can be trimmed and maintained like any shrub; . . . [for] our state legislators to remove the obscure and stringent law, which was based on fictional conjecture, and replace it with new legislation .... takes into consideration the realities of today's horticulture world .... Property owners now have their chance once again to maintain their mangroves, thereby increasing their property values, retaining their scenic views and justifying their property tax rates.[16]

Self-regulation and private property rights are essential, but there should be a tighter line drawn when dealing with an essential plant that provides an important habitat for birds and aquatic life. For instance, many scientists believe that trimming of leaf-bearing branches reduces the food supply to the small marine organisms.

The only requirement for trimming the mangroves is that a "professional mangrove trimmer" do the work. The act places no limitations on the amount or degree of trimming by a professional trimmer, other than the requirement of mitigation if the trimming results in the destruction of more than five percent of mangroves within the area of trimming. Without a permit, most violations go undetected unless a neighbor calls the Department of Environmental Protection or the Florida Marine Patrol. It is nearly impossible to stop excessive trimming without a permit requirement.

Putting "Preservation" Back Into the Act

Senator Jack Latvala determined in 1996 that the act had gone too far. In February 1996 the Senate Natural Resources Committee took steps to correct the 1995 act. By a unanimous vote, the committee approved CS/SB 508, HB 975, written by Latvala, that would tighten restrictions on trimming mangroves. Latvala's bill "cuts from 75 to 25 feet the depth of a stand that can be trimmed without a permit. Stands higher than 12 feet must be cut in stages to minimize shock to the trees. No stands could be cut below six feet, and no more than 65 percent of the stand's shoreline length may be trimmed, with or without a permit."

The Senate bill was a step in the right direction until the House version was sent to the Natur al Resources Committee. One of the amendments seemed to allow trimming on privately owned islands. Such trimming would not be allowed on similar public lands. Furthermore, there was an amendment by Tom Warner from Stuart that would remove the 65 percent limit for lots with less than 150 feet of shoreline. This would leave the door open to only a certain number of property owners with small waterfront lots. The House rejected this attempt to give property owners more leeway when trimming and approved a compromised offer by Rep. Sharon Merchant.

The 1996 amendment also prohibits the use of herbicides and requires owners who are exempt from getting a permit to notify the county that trimming will take place. Rep. Merchant weakened the bill in two areas: by increasing the depth of stands for no-permit trimming to 50 feet, and exempting home sites less than 150 feet wide from the 65 percent restriction. Waterfront property owners could still trim their mangroves if they are blocking the view. Despite these setbacks, the bill makes major improvements.

"This bill is an exemption to trim mangroves, not an exemption to kill them," said Eric Myers, Broward County's director of biological resources. "If a property owner or trimmer kills a mangrove, he'll be held responsible."[17]

"What was originally introduced was a really bad bill," said Frank Bernardino, assistant to the director of DERM. "We don't think this is perfect, but we got the best compromise possible."[18]

The legislature amended the law to allow counties to regulate the permits for the trimming and alteration of the mangroves, a move environmentalists say allows for more substantive oversight.[19] County environmental workers can oversee mangrove trimming again and make rules on cutting down the shoreline trees, which can be stricter than the state regulations.

Under the 1996 amendments, a special permit is needed to trim mangroves more than 24 feet high or stands wider than 50 feet. No mangroves can be clipped shorter than six feet; no more than two-thirds of mangroves on shorelines longer than 150 feet can be trimmed. No longer can a licensed landscape architect be a professional mangrove trimmer, until their professional board adopts mangrove trimming standards. The state recognizes certified arborists, certified environmental professionals, and wetland scientists as qualified trimmers. Governor Chiles signed these amendments, which also provides for a permit to trim mangroves farther than 25 feet from the shore, and illegal alteration can mean fines up to $250 per shrub.

Suggestions for Future Management

As with most coastal zones, the land in Florida is used and exploited for food production and habitation. Categorizing mangrove areas would enable easy implementation of laws and management programs. Some suggest that coastal mangrove areas should be classified into three categories, based on their present state of alterations. The first category is the reserved mangroves, which should be protected for their natural history value; the second category is the managed mangroves, which should be developed for optimum food and fish production; and the third stage is the altered mangroves, which should be restored by reforestation and/or converted to productive land uses.[20]

Many countries have developed programs for the management of mangroves. For instance, in Malaysia the government rules regulate cutting schedules and recommend ditching or channelizing to selectively encourage growth of the very desirable red mangrove. The Malaysian Forestry Department views the value of the mangrove swamp in terms of yield of high quality wood for posts, firewood, or charcoal.[21] Likewise, countries have help symposiums on mangroves. One such country is India, where a symposium on the "Significance of Mangroves" made recommendations for their protection and preservation.

After factoring in elevation, energy of the waves, and soil type, planting mangroves can be successful. Areas that do not seem likely to be filled and developed as real estate should be carefully planned to be converted into mangrove swamp, which would help to compensate for past losses of mangroves in the bays and coastlines.

Mangroves also buffer uplands from hurricane tides. Some suggest a riprap of boulders and fill be placed seaward to protect the mangroves from further storm erosion. Furthermore, research and monitoring studies and periodic management plan revisions are fundamental to successful management of the mangroves. Studies should be prepared on the major physical features of the mangrove, such as geomorphology, bottom topography, bottom types, extent of saltwater penetration (diurnally and seasonally), tidal flux, major current patterns, turbidity patterns in space and time, short-term geomorphological. dynamics, and seasonal considerations. A system of protected areas and estuary and wetlands conservation can help stop further degradation, facilitate recovery of devastated areas, complement fishery management activities, and support the sustainable use of resources.

The International Society for Mangrove Ecosystems (ISME) has adopted a charter for mangroves that complements a World Charter for Nature that the General Assembly of the United Nations proclaimed on October 28, 1982, that should be incorporated into all laws regarding mangroves. The charter affirms that nature shall be respected, genetic viability on earth shall not be compromised, conservation shall be practiced, sustainable management shall be utilized by man, and nature shall be secured against degradation.

Conclusion

Mangroves in Florida have been degraded by poorly conceived development that failed to consider losses of natural productivity, where the greatest threat comes from construction activities. The primary concern is control of development in additionally environmentally sensitive areas and use of available funds to more effectively meet that need.

[1] Fla. Stat. [subsections] 403.9321--403.93333.

[2] Mangrove is an "umbrella" term for the three types of trees that grow where the water meets the land.

[3] The Department of Environmental Protection declares that these plants provide food, shelter, habitat to a host of animals, and provide erosion protection to Florida's coastal waters.

[4] Prescillano M. Zamora, The Role of Mangrove Forest as a Life Support System, Workshop on the Conversion of Mangrove Areas to Aquaculture, United Nations Development Program, April 1986.

[5] See Fla. Stat. [sections] 403.9322.

[6] Belonging or relating to the bank of a river or stream, or shore of the sea, or other tidal water. This definition as applied to the shore of the sea or other tidal water is more accurately called "littoral."

[7] For example, the Florida Keys Area Protection Act (Fla. Stat. [sections] 380.0552) of 1995, which "established a land management system that conserves and promotes the community character of the Florida Keys," and promote "orderly and balanced growth." These requirements include protection of "shoreline and marine resources, including mangroves, coral reef formations, sea grass beds, wetlands, fish and wildlife, and their habitat. "The purpose is to "provide optimum utilization of our limited resources, facilitate orderly and well-planned development, and protect the health, welfare, safety, and quality of life of the residents of this state."

[8] Louis B. Guttman, Sovereignty Lands Claims -- Balancing Issues and Equities, Stetson L. Rev. Fall 1990.

[9] Consequently, the 1995 Mangrove Trimming and Preservation Act repealed Fla. Stat. [sections] 403.931 and made a more lenient rule for riparian owners, simply no permit process.

[10] 1995 Session Law Number 95-299 (Bill History, CS/HB 1507, SB 1866).

[11] The State of Florida has had a long history of protecting mangrove trees from being uprooted or trimmed without state permits. The act, for the first time, endorses the severe pruning of mangroves that obstruct the views of waterfront property owners.

[12] Dade County Resolution R-301-95.

[13] In the past, it cost $500 for a mangrove trimming permit; it also involved cumbersome brain-teasing paperwork implementing complex rules. The state's environmental regulators often visited the sites and battled with the property owner over each cut. W, Booth, Mowed-Down Mangroves Reveal Strain Behind Environmental Issues, The Washington Post, Sept. 26, 1995, at A3.

[14] David Olinger, Law on Mangroves Thick With Confusion, St. Petersburg Times, Aug. 27, 1995, at IA.

[15] Disregard for Mangroves Is Clear-Cut, St. Petersburg Times, Aug. 25, 1995, at 2.

[16] Assault on Environment Laws Disturb Some in GOP St. Petersburg Times, Sept. 30, 1995, at 13A.

[17] Cyril T. Zaneski, Environmentalists Lobby Against Mangrove Bill, Miami Herald, May 3, 1995, at 1B.

[18] Zaneski, supra note 17.

[19] Nicole Sterghos, Mangrove Dimming, Palm Beach Post, Jan. 22, 1997, at 4B.

[20] Armando A. De La Cruz, A Realistic Approach to the Use and Management of Mangrove Areas in Southeast Asia.

[21] H. J. Teas, Mangroves of Biscayne Bay (1974).

Kellyalexis Fisher received her B.A., cum laude, in 1993 from the State University of New York at Cortland College and her M.A., cum laude, in 1994 and JD. in 1997 from the University of Miami, where she was president of The International Organization for Human Right& Her article is the first place winner in the 1997 Maloney Writing Contest, sponsored by the Environmental and Land Use Law Section. It is submitted on behalf of the section, Robert W. Wells, Jr, chair, and Sid F. Ansbacher editor.
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