"Man let 'em grow;' the state of Florida mangrove laws.

• Author: Fisher, Kellyalexis

This article is derived from the 1997 Frank Maloney law student writing contest's winning paper, which addressed the 1995 Mangrove Trimming and Preservation Act.[1]

Mangroves[2] are trees or bushes, usually grown between the high water mark and mean low tide. They grow along tropical and subtropical shores and are found in estuaries. The mangrove ecosystem[3] is a highly complex natural system involving nonliving (abiotic) and living (biotic) components.[4] Mangroves develop in estuaries, behind spits or off-shore lands, and in protected bays with shallow water or, in decreased amounts, on coral cays.

According to Florida legislative findings, there are over 555,000 acres of mangroves now existing in Florida.[5] Of this total, over 80 percent are under some form of government or private ownership or control and are expressly set aside for preservation or conservation purposes.

Furthermore, the legislature finds that many areas of mangroves occur as narrow riparian [6] mangrove fringes that do not provide all the functions of mangrove forests or provide such functions to a lesser degree, and that waterfront property owners can live in harmony with the mangroves.

Background

During the late 1800s and in the first half of the 1900s, Florida's public policy favored the development of waterfront areas, the draining of cypress swamps, mangrove areas, and marshlands, the filling in of low lying and submerged lands, channelization of rivers and streams, and the regulation of water levels within lakes, rivers, and other water bodies. Heading into the 21st century, the state's public policy has shifted 180 degrees.[7] Development is highly regulated and limited in environmentally sensitive areas. Wetlands are valued highly as habitats for many animal species and as water recharge areas. Development has put a huge strain on water quality.[8]

In 1984 the Florida Legislature enacted its first mangrove statutes. The following year the Department of Environmental Regulation adopted the first mangrove rules. Up until 1994, many revisions attempted to clarify which types of mangroves could be trimmed and to what heights, where trimming would be allowed, and what types of permits would be required. Property owners claimed that the statutes and rules were too complex and confusing. The riparian property owners were so adamant that many be Mangrove, which found legislative sponsors for its own mangrove legislation. Likewise, the Department of Environmental Protection continued to experience difficulty in enforcing these laws, and formed a committee of 12 members called the Mangrove Technical Advisory Committee to develop a draft rule and legislation.

In April 1992, Nathaniel Reed, a well-known environmentalist and a former undersecretary of the U.S. Department of Interior who lobbied for environmental causes under five Florida governors, received a notification of noncompliance from the state for pruning mangroves at the Jupiter Island Golf Course, in violation of two state rules. For each offense, or for illegally trimming the mangroves, Mr. Reed, as the owner of the property, could have been fined up to $10,000 a day. The following May, Reed and John Morrison of the John's Island Property Owner's Association requested an administrative hearing to determine whether the rules governing mangrove trimming are valid, and to propose that the state develop one simple rule.

Their petition stated they were riparian landowners who had a statutory right to selectively trim mangroves in order to enjoy coastal views as provided in F.S. [sections] 403.931(5).[9] They stated that mangrove rules imposed severe regulatory constraints on the use and enjoyment of coastal view and other aesthetic qualities associated with their riparian ownership. Additionally, the petition listed important points in which the rule was either arbitrary and capricious or lacking scientific basis. The legislation was held to be an invalid exercise of delegated legislative authority.

The 1995 Act[10]

The Reed decision led to the 1995 Mangrove Trimming and Preservation Act, which substantially changed Florida's mangrove protection statutes. The act repealed existing statutes that regulated the trimming of mangroves and replaced them with several new statutes that reduce the amount of permitting and paperwork required for that activity. Distinguishing between "trimming" and "altering" mangroves, the act allows trimming activity with or without a permit, depending on the location of the mangrove. On the other hand, altering a mangrove (removing or cutting the plant so much that it dies or is defoliated) is a prohibited activity, unless a...