COVID-19 Opens New Opportunities for Agencies to Deny Public Comment on Key Issues

Since Gov. DeSantis’s April 1st "Safer-At-Home" order, many of Florida’s agencies began holding virtual meetings. There has been a question in the minds of those who believe public participation is a keystone of our democracy: is a webinar an adequate substitute for a face-to-face meeting that offers time for public input? And are webinars going to become the new normal?

Some citizens roll their eyes at the brevity of typical three-minute time limits in agency or county commission hearings, but two things argue strongly in favor of maintaining that thin thread of public participation: 

1. Public comment puts a matter into the record, thereby keeping a toe in the door for future litigation, should it become necessary.
2. Sometimes the agencies or governmental entities will actually see the logic in public remarks, and make positive changes. Public comment is particularly effective when it directly demonstrates that a given action will not be in compliance with the comprehensive plan, ordinances, or other local codes.  

As COVID-19 descended upon Florida, a number of initiatives that would normally have been progressing in full public view have been delayed or have gone underground. Examples that stand out for Waterkeepers include:

1. The matter of FDEP’s desire to assume the role now held by the US Army Corps of Engineers in permitting and enforcing federal Clean Water Act Section 404: the section that regulates dredging and filling of “waters of the US,” including streams, rivers, lakes, and wetlands. The idea of piling more responsibilities on an agency that is already struggling to fulfill its most basic functions today flies in the face of reason.  
2. The matter of the toll roads to nowhere, instituted by this legislature during the 2019 session, which will open up vast areas of Florida’s native habitats and agricultural lands to untrammeled development. No coherent need has as yet been articulated for these roads.
3. The matter of FDEP moving forward with a Clean Water Act NPDES permit for Turkey Point nuclear power plant that could allow for "seepage" from the Cooling Canal System -- already contaminating our groundwater aquifer.  

(Source: Earth Economics)

All are widely regarded as industry-driven and highly politicized moves by the majority in the legislature, as rewards for the political donor class of Florida. All three could be highly destructive to the environment of Florida, heedless of the well-established links between the environment and the economy in our state.     

Hearings in some of these, and other matters, are now being conducted by videoconference or webinar, with inadequate provisions for public input in many cases. Some local hearings are allowing written comments; some provide for phone input. The 14 Waterkeeper groups in Florida, and many other public interest nonprofits, regard webinars and videoconferences as an irresistible opportunity for sidestepping the need for public input in matters of public policy. 

The Administrative Procedure Act (APA) provides a means of enforcing environmental law, including provisions in those laws requiring public comments. The public has longstanding rights to be involved in the decision-making process of agencies. Failure to provide adequate means of public participation could result in judicial review of an agency’s decision as “arbitrary and capricious.” In short: allow for public involvement, or face legal action. 

While COVID-19 ravages the states, and people’s lives are at risk, agencies and decision-making bodies continue to move the ball forward with video conferences. We understand that reasonable accommodations should be made in these unprecedented times, but ensure that the public retains its right of participation with clear, inclusive, uniform rules. And when people are able to safely assemble again, go back to hearing formats as they have been, and leave the door wide open for public input. 

Read Former Florida Governor, Bob Graham's, take on this issue here. 

For more information on Waterkeepers Florida, visit www.waterkeepersflorida.org