November 5, 2014 –
Florida’s Amendment 1 passed: What happens next?

Yesterday, Florida voters overwhelmingly approved Amendment 1, which requires one-third of Florida’s taxes on certain real estate transactions be applied to water and land conservation.

Many voters may assume that with Amendment 1 approved, the promised water and land conservation is a done deal. However, the passage of Amendment 1 simply starts a lengthy implementation process that begins with the Florida Legislature.

Because the Florida Legislature appropriates the money that Amendment 1 dedicates, the Legislature will have to decide what Amendment 1 mandates. Some legislators will want to fully redirect this money to environmental interests. But others will work to use the amendment’s vague language to maintain the status quo as they strive to balance environmental interests with myriad other demands for state funds. Any such effort to dilute the impact of Amendment 1 will be likely be met with stiff political opposition and, if necessary, litigation.

This interpretive battle will likely be waged over several key provisions, most notably over the provision allowing the money collected to be spent on the “management, restoration of natural systems.” Some will argue that the Florida Legislature may satisfy the new mandate simply by directing the Amendment 1 money to existing agencies that manage “natural systems” such as the Department of Environmental Protection and the Fish and Wildlife Conservation Commission. These two agencies are already appropriated more than $1 billion a year, in part to manage natural systems. It will be argued that this appropriation fully satisfies the requirements of Amendment 1, and doing so avoids adding any new money to these purposes in order to satisfy this new constitutional requirement.

Other battles may occur over the Amendment 1 provision stating that the money can be used to finance “the enhancement of public access or recreational enjoyment of conservation lands” or “improvement of land, water areas, and related property interests.”

For example, does this allow money to be spent on tourism advertising? Supporters of such spending could point out that some of these tourists will go to conservation lands, like our beaches, and the advertising is therefore contributing to public access and recreational enjoyment.

What do these implementation battles mean to you?

If you’re an entity that benefits from existing state funding, it likely means several years of uncertainty while the Legislature and the courts wrestle with many questions associated with interpreting the Florida Constitution’s newest language.

The manner in which the budget is written and appropriated will make a big difference in defending new or existing spending under the language of the amendment due to increased public and legal scrutiny generated by passage of Amendment 1.

For more information, please contact any of the authors of this e-alert:

• Greg Munson is a shareholder and member of Gunster’s government affairs and environmental and land use practice groups. He is a former deputy secretary for water policy and ecosystem restoration at the Florida Department of Environmental Protection.
• J. Larry Williams is a shareholder in Gunster’s government affairs practice.
• Ken Bell is a shareholder and co-chair of the firm’s appellate law practice. He joined Gunster in 2014 and is a former justice of the Florida Supreme Court.

More about Gunster’s government affairs practice:

Lila A. Jaber heads Gunster’s government affairs practice from the firm’s Tallahassee office.

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