An appeals court Thursday rejected a voter-approved measure that sought to establish a “right to clean water” in the Brevard County community of Titusville, saying it conflicted with state law.
A three-judge panel of the 5th District Court of Appeal sided with the city of Titusville, which contended that the 2022 local ballot measure was “preempted” by state law and, as a result, should not take effect.
The measure, which nearly 83 percent of voters supported, was sponsored by the group Speak Up Titusville as an amendment to the city charter.
The measure said, in part, that residents “possess the right to clean water, which shall include the right to Waters of Titusville which flow, exist in their natural form, are free of pollution, and which maintain a healthy ecosystem,” according to Thursday’s opinion.
The measure also said any “resident of Titusville may bring a legal action, in the name of the resident or in the name of the Waters of Titusville … to enjoin violations of the right to clean water. Remedies shall include injunctive relief to enjoin the violation and monetary damages to restore the waters to their pre-damaged state.”
But the city’s challenge to the measure focused on a 2020 state law that said such things as local ordinances and charters “may not recognize or grant any legal rights to a plant, an animal, a body of water, or any other part of the natural environment that is not a person or political subdivision (a governmental entity such as a city or county).”
Also the law said local measures cannot give people or a “political subdivision any specific rights relating to the natural environment not otherwise authorized in general (Florida) law or specifically granted in the state Constitution.”
Preemption involves state laws trumping local ordinances or other types of local measures. It has been a controversial issue in Tallahassee in recent years, as lawmakers have repeatedly passed bills to preempt actions by local governments.
The appeals-court opinion Thursday focused, in part, on the wording in the charter amendment that would allow residents to take legal action “in the name of the Waters of Titusville.” It said the 2020 state law prevents a local charter from “recognizing a legal right to a body of water.”
“In addition, there is no provision authorized in ‘general law or specifically granted in the state Constitution” that gives a citizen the right to file an action in the name of a body of water,” said the opinion shared by Judges John Harris, Joe Boatwright and John MacIver. “Further, although it is an admirable goal, we know of no provision that is authorized in either general law or specifically granted in the state Constitution, nor has one been provided (in the case) by Speak Up, which specifically provides a citizen the right to have a body of water that ‘flows, exists in its natural form, is free of pollution, and which maintains a healthy ecosystem.’”
Also, the opinion said that while the state has laws and regulations that “support the protection and enhancement of water quality and pollution control, neither the Florida Constitution nor other general law explicitly provides this right to clean water as defined in the charter amendment.”
The city of Titusville went to the appeals court last year after a Brevard County circuit judge upheld the measure. Thursday’s opinion sent the case back to circuit court with direction to enter a judgment for the city.
“We recognize the overwhelming support of this charter amendment by the residents of the city of Titusville and the admirable policies of the amendment,” the opinion said. “However, the Legislature in drafting (the 2020 law) has not authorized the types of rights provided for in the charter amendment. As such, an appellate court has no power to change or alter what the Legislature mandated.”
