On April 26, 2021, Florida Sea Grant's Coastal Planning Program Newsletter put out a special edition, Legislative Update on Resilience & Sea-Level Rise, to help make sense of some new legislation:
Florida Legislature Acts on Resilience, Sea-Level Rise, and Flooding but not on Climate Change; Sends Mixed Signals to Local Governments about Creating More Vulnerability
On April 8, 2021, the Florida Legislature passed “An Act Relating to Statewide Flooding and Sea Level Rise Resilience” (SB 1954/HB 7019) (referred to hereafter as the Resilience Act or Act). This and related bills contain a number of positive changes to Florida Statutes that will help Florida better understand the risks and costs to Florida of sea-level rise (SLR). While this and related bills that have passed this session, as described below, indicate a sea change for Florida’s Legislature on SLR, this effort would be stronger with a focus on the causes of SLR and increased flooding.
The Resilience Act clearly articulates the risks of SLR and increased flooding, whether due to more severe rain events, surge, or SLR. The Act establishes the “Resilient Florida Grant Program” in the Florida Department of Environmental Protection (DEP). The program can provide grants to local governments and regional resilience entities to fund resilience planning, vulnerability assessments for flooding and SLR, the development of adaptation projects, plans, and policies to address flooding and SLR threats, and projects to adapt critical assets to the effects of flooding and SLR. Grants may also be used for necessary data development and collection. The Act sets out minimum requirements for the data included in funded vulnerability assessments. Importantly, the Act requires that all such data be in specific formats and be submitted to DEP for inclusion in a statewide database.
This overall collection of local data will then assist the State accomplish the Resilience Act requirement that DEP develop a statewide flood vulnerability and SLR data set that will allow creation of a statewide flood vulnerability and SLR assessment. This includes development of statewide SLR projections (which are noted to not supersede regionally adopted projections) by the State’s Chief Science Officer. The Act details an extensive list of information to include in the statewide vulnerability assessment, such as information from previous local vulnerability assessments which meet specified information protocols. The first assessment is due for completion on July 1, 2023 whereas the statewide dataset on which it is based is due July 1, 2022.
The Act requires DEP to develop a yearly Statewide Flooding and Sea Level Rise Resilience Plan on a 3-year planning horizon. This plan consists of ranked projects that address flooding and SLR in coastal or inland communities and is submitted to the Governor and Legislature. The Act details the criteria and ranking percentages to be used by DEP in ranking the projects submitted by municipalities, counties, or regional resilience entities.
The Act establishes the Florida Flood Hub for Applied Research and Innovation at the University of South Florida College of Marine Science. The Hub is to coordinate and support applied research and innovation and to address flooding and SLR challenges in Florida. The Florida Flood Hub and USF serve as the lead institution for engaging other academic and research institutions, private partners, and financial sponsors on related efforts. Related bill SB 2514 authorizes DEP to provide funding to USF for operational and administrative costs for the Flood Hub.
Section 3 of the Act adds “inland and coastal flood control” to the Office of Economic and Demographic Research’s required annual assessment of Florida’s water resources and conservation lands.
The Resilience Act forms part of a larger initiative by the 2021 Legislature in Florida to address flooding and SLR. For example, the focus on specifying the types and formats of data to be collected and used and submitted to DEP for use at the state level is part of a larger effort by the State of Florida to capture more granular, local-level data on risk and vulnerabilities and the costs to address them. For example, HB 53 contributes to this, albeit on a shorter timescale, with wastewater and stormwater. HB 53 would require counties, municipalities, and special districts to develop detailed analyses and plans for their wastewater and stormwater facilities over the next 20 years. These analyses and their data sets are then compiled by the relevant counties and supplied to the State Office of Economic and Demographic Research. Additionally, HB 53 would have this information integrated into the new statewide assessment that is part of SB 1954.
Seeing Florida’s Legislature getting serious to address the impacts of flooding and SLR is good news. But is this sufficient?
First, and central to the entire conversation, neither SB 1954 nor any related bills directly address climate change (CC) as the driver for SLR and the increased intensity rain events causing increased inland and coastal flooding. This represents a failure to address the root causes of SLR and increased flooding. This is akin to a homeowner with a roof leak collecting data on how much water is leaking in, predicting where water might leak next, and estimating how many buckets and of what size are needed in the future. But doing all this without directly addressing the leaking roof. While we have already “baked in” some sea-level rise into our future, we still must reduce greenhouse gases to minimize the increasing rate of SLR and the total amount of SLR we cause by emitting greenhouse gases.
Second, legislative work on SLR so far focuses on infrastructure fixes to SLR and increased flooding. This may be a tenable approach in the short term, but over medium- and long-term time horizons, this will not be feasible for all communities. As Monroe County (a.k.a. the Florida Keys) has discovered with extensive data gathering and analysis in its efforts to understand the vulnerability of its roads: raising all the roads to keep them as dry as people are accustomed to will be too expensive for the County to maintain over the long-term. Similar realities will arise in other low-lying places for existing infrastructure beyond just roads. Fortifying infrastructure to address SLR and precipitation-driven increases in flooding buys us time, but we still need longer-term strategies and options. For example, when do we consider the merits of hardening infrastructure now versus investing those funds in planning for alternative solutions at the community level? Questions such as this admit of no easy answers, but sooner or later we will have to answer such difficult questions. The sooner we begin to consider them, the more options we will have and at costs we are more likely to be able to bear.
Third, the Resilience Act is linked financially to SB 2521 and SB 2514, both of which have now passed the Legislature. SB 2521 reduces the documentary tax stamp moneys that flow to the State Housing Trust Fund. Florida already has severe housing affordability problems. SLR and flooding exacerbate these challenges by driving gentrification in higher elevation areas in urban areas, with the Miami area often referenced as an example. Thus, even as SLR and increased flooding contribute to affordable housing problems, SB 2521 redirect monies from the State Housing Trust Fund to the “Resilient Florida Trust Fund” created by SB 2514 that will pay for the Resilience Act. Instead of directly addressing affordable housing, these monies will now be used to fund the new programs in SB 1954, such as the Resilient Florida Grant Program, the Statewide Flooding and Sea-Level Rise Resilience Plan, providing grants to regional resilience coalitions, and for administrative and operational costs of the Florida Flood Hub.
Fourth, even as the Legislature focuses on data gathering and funding projects to address SLR and increased flooding, the Legislature is sending mixed signals to local governments. To understand these mixed signals, a little background: those working in the fields of SLR and flooding understand three basic things: 1) Most of the risk from SLR and flooding comes from how and where we choose to develop (to paraphrase a famous quote: Floods are acts of God; flood losses are largely acts of people); 2) while individuals suffer greatly when disasters strike vulnerable areas, the public also pays the bill through massive federal spending to address the foreseeable damage that occurs due to our development decisions in hazardous areas (e.g. hundreds of billions of dollars in federal supplemental spending over the last years for disasters and forgiveness of tens of billions of dollars of debt of the National Flood Insurance Program); and 3) the most powerful tools local governments have to avoid creating more vulnerabilities to hazards such as SLR and flooding include planning, zoning, and development restrictions/conditions.
Yet even as these three points are clear, moving rapidly through the legislative process is SB 1876, an Act Relating to Relief from Burdens on Real Property Rights. This bill proposes significant changes to the Bert J. Harris, Jr., Private Property Rights Protection Act that would decrease the willingness and ability of local governments to make changes that prevent creation of more vulnerability (and the related public costs) in areas currently at risk of chronic flooding or that that will become so due to SLR and climate change. For example, SB 1876 would make it possible for property owners who have never applied for a permit, had any development plans, or maybe never even contemplated further development, to sue a local government for “damages” caused by the mere adoption of new rules or regulations on property. This could lead to attorneys watching for new local government and directing advertising to owners of “affected” properties. Since the bill also makes it easier for a prevailing property owner in a lawsuit to recover attorney’s fees (and for a longer time period) than for a prevailing defendant government, this bill would encourage more lawsuits that would decrease the willingness and ability of local governments—or the State—to slow or stop the creation of additional vulnerability to SLR and increased, climate-change-driven flooding. A number of other changes in the bill also place greater burdens and risks or offer less protections to government entities that might utilize planning, zoning, and development restrictions to prevent creation of more vulnerability to current and future risks. Thus, the proposed changes to the Bert Harris Act discourage any new rules or regulations through increased legal and financial risks to local governments of doing so. In turn, this means that property owners and developers will have more “rights” to create more of the very vulnerabilities that the Legislature is spending so much money to address in the Resilience Act.
In the past, Florida was a leader on land use planning and climate change mitigation through statewide policies focused on energy, conservation, and clean, renewable power. But most of those state laws have been repealed. Now, the Legislature has acted on some of the key impacts of climate change—increased flooding, higher storm surge, and SLR—but not the root causes of these impacts, all while advancing changes that make it more difficult for state or local government to avoid the private creation of additional vulnerability. The impacts of increasing vulnerability will, in large part, be borne by citizens and taxpayers at the local, state, and national levels.
