Environmental stewardship of Florida shooting ranges.

• Author: DeMeo, Ralph A.

The State of Florida estimates that there are more than 400 sport shooting ranges in the state and that approximately one million shooting sport enthusiasts visit these ranges each year. (1) Shooting ranges in Florida have received increased attention recently as a result of certain high-profile cases that have raised the regulatory agencies' interest. This, in turn, has triggered the involvement of such influential national organizations as the National Rifle Association (NRA) and National Sports Shooting Foundation (NSSF), as well as public and private gun clubs in Florida. The upshot of this increased attention has been the passage of new laws and the development of new environmental stewardship practices that are applicable to Florida shooting ranges. This article will explain the background of these developments and discuss the legal and scientific issues associated with shooting ranges in Florida.

Legal Background

In Florida, discharges or releases of pollutants from facilities are heavily regulated and liability is imposed generally under F.S. Chs. 376 and 403. Specifically, F.S. [section] 376.302 provides that "it shall be prohibited for any reason: to discharge pollutants or hazardous substances into or upon the surface or ground waters of the state or lands...." (2) In addition, F.S. [section] 403.161(1) provides that "it shall be prohibited for any person: to cause pollution ... so as to harm or injure human health or welfare, animal, plant, or aquatic life or property." (3)

In 2003, the Florida Legislature enacted F.S. [section] 376.30701, which is the codification of the principles of risk-based corrective action (RBCA). RBCA utilizes site-specific data, modeling results, risk assessment studies, institutional, and engineering controls to develop a unique remediation strategy for the site that considers the intended use of the property and which is protective of human health and safety and the environment. (4) Under this law, shooting ranges in Florida are eligible to follow the RBCA approach to site rehabilitation.

The Florida Department of Environmental Protection (FDEP) is authorized to file a civil suit against any person who caused a discharge of pollutants or hazardous substances, or who owned or operated a facility at which the discharge occurred. F.S [section] 376.308(1). Individuals who have suffered damages resulting from a discharge or condition of pollution are also covered by these statutes. F.S [section] 376.313(3). In Aramark Uniform and Career Apparel v. Easton, 894 So. 2d 20 (Fla. 2004), the Florida Supreme Court held that F.S. [section] 376.313(3) creates a private cause of action imposing strict liability for damages against an adjoining landowner without proof that the defendant actually caused the pollution. In addition, the court held that the defendant is limited to the statutory defenses found in F.S. [section] 376.308. (5)

Under the statutory and judicial authority set forth above, shooting ranges in Florida are potentially liable to the State of Florida and third parties for causing any pollution or discharging pollutants or hazardous substances into the environment. In response to reports of violations, in recent years, the FDEP stepped up its investigation and enforcement of these laws at several shooting ranges in Florida. (6) In response to the increased enforcement by the FDEP, gun clubs in Florida, many of them allied with the NRA and NSSF, counterattacked by introducing legislation in 2004 intended to prohibit state enforcement of these environmental laws at shooting ranges and imposing severe criminal penalties on any governmental officials who targeted shooting ranges for enforcement. (7) After much debate, the legislature enacted F.S. [section] 790.333, relating to "Sports Shooting and Training Range Protection, Liability, and Penalties." The statute generally directs that sports shooting range owners, operators, tenants, or occupants implement site-specific appropriate environmental management practices, utilizing as guidance the FDEP's BMP Manual.

The shooting range law includes a specific finding that these facilities "are widely used and enjoyed by the residents of this state and are a necessary component of the guarantees of the Second Amendment to the United States Constitution and of s. 8, Art. I of the State Constitution." F.S. [section] 790.333(1)(b). F.S [section] 790.333(1)(d) says that it is state policy "to encourage the safe...