Title: Jurgens, J. A. Summary Analysis of the EESC Recommendations to the Florida Legislature (Prepared for the Mid-Year Meeting of the Florida Bar, January
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Title: Jurgens, J. A. Summary Analysis of the EESC Recommendations to the Florida Legislature (Prepared for the Mid-Year Meeting of the Florida Bar, January
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The complexity of the current system deters the ability of the
Commission to offer highly detailed recommendations. The
complexity is due to the development of the existing statutory
structure in segments over a prolonged period of time without a
cohesive philosophy or policy for resource protection. The
proposed combining of existing authorities at the District level
in the search for efficiency and enhanced resource protection will
undoubtedly uncover new questions regarding environmental
permitting necessitating subsequent clarifying legislation.


The Commission's deliberations and the Final Report are
important to Florida's environmental permitting program. The
Final Report, public testimony and the hundreds of pages of
documentation may serve as the cornerstone for long term
environmental reorganization. As to the probability of
legislative approval of any of the controversial recommendations,
the answer changes dependent upon to whom the question is asked.




The following recommendations have been tentatively adopted
by the Environmental Efficiency Study Commission for public
review on November 20 in West Palm Beach.


Funding: condition new program assignments on ade-
quate funding (which could include general revenue).
The millage caps for all WMDs should be equalized.
Allow the Governing Board to determine Basin Board
existence, boundaries, and money split.

Dredge and Fill/Wetlands: move the Henderson Wet-
lands Protection Act from Chapter 403 to Chapter 373
and provide the WMDs with exclusive statutory
authority to administer dredge and fill/wetlands

Non Point Sources: provide WMDs with exclusive
statutory responsibility for all aspects of non-point
source management. All non-point source programs will
be moved from DER to the WMDs by October, 1989. In
addition, the Environmental Regulation Commission
shall adopt minimum statewide standards for non-point
source programs. The WMDs may set more stringent
standards subject to review and approval by the ERC.
Retain the appeal processes of both Chapter 120 and s.
373.114, F.S.

Landfills: contingent upon an interim study to de-
termine jhe extent and efficiency of such a move,
landfill regulation will be moved to WMDs along with
all water quality programs by 1994.

Point Source Discharge into Surface Waters:
contingent upon an interim study to determine the
extent and efficiency of such a move, all water
quality programs will be moved to the WMDs by 1994.

Water Reuse: provide exclusive statutory authority
for water reuse in the WMDs concurrent with the trans-
fer of all water quality programs in 1994.

Permitting of WMD Projects: WMDs shall not permit

their own activities/projects, but shall receive a
permit from DER.


Dredge and Fill on Sovereign Submerged Lands:
The _TIITF will continue to adopt rules pertaining to
sovereign lands and aquatic preserves. These rules
will be administered by the WMDs. The decisions of
the WMDs pursuant to these rules will be final after
a time certain unless there is an appeal pursuant to
s. 373.114, F.S., or review is initiated by the TIITF
pursuant to rules adopted by the TIITF.

Mining in Wetlands: provide that the reclamation
program remain in DNR, but that in those wetland areas
where mining occurs, WMD decisions regarding permits
will be binding.

Oil and Gas: retain the oil and gas program in DNR.
In wetland areas applicable permits will be required
from the WMDs.

Coastal Construction: coastal construction regula-
tion should remain in DNR. DNR will be bound by the
assessment of the WMD as it pertains to waters of the

Beach Restoration: the Commission recommends that
the legislature clarify conflicting policies and
require that involved agencies engage in joint long
range planning.


Chapter 380 Implemenation: Agencies that require
permits must participate in conceptual agency review.
All agencies will be required to attend the preappli-
cation conference. The participation of a DRI
developer is mandatory unless he gives notice to the
RPC that he is opting out. The developer has 30 days
after the preapplication conference to notify the RPC
that he is opting out. The agencies must adopt con-
ceptual permit rules by July 1, 1989. The conceptual
review is governed by Chapter 120 and subject to pro-
visions for default approval under Chapter 120. Air
pollution and hazardous waste are added to those pro-
grams for which the agency must establish by rule a
set of procedures necessary for conceptual agency
review. If an agency grants conceptual approval, DCA
and the RPC may comment on the regional implications
of the conceputal approval but may not make conflict-
ing recommendations or findings. In the absence of
specific authority set forth in applicable law or

ordinance the development order shall not conflict
with a conceptual approval.


Drinking Water: provide exclusive statutory
authority for the construction of drinking water wells
in the WMDs and authority for the water, after it
leaves the well, to HRS. The HRS Secretary shall have
authority to adopt the drinking water rules provided
this does not jeapordize federal funding. The drink-
ing water program may be delegated to local pollution
control programs as well as county public health

Well Construction Permitting: provide exclusive
statutory authority in the WMDs for well construction,
and the monitoring of drinking water wells for public
health purposes to HRS.

Septic Tanks: passive septic tank systems shall be
regulated by HRS regardless of their size, and active
treatment systems shall be regulated by DER as point
sources of pollution.

Fisheries: transfer Marine Fisheries Commission,
the Marine Patrol and the Division of Marine Resources
from DNR to the GFWFC by statutory revision, without
altering GFWFC's constitutional status.

Endangered Species: provide for exclusive statutory
authority for endangered animals protection in the
GFWFC. Transfer the endangered plant program from

Aquaculture: aquaculture problems will benefit from
other Commission recommendations so no specific pro-
posals are needed.

Data Management and Research: provide for a data
management system in DER that will identify through a
centralized computerized index all resource related
data and research available at all levels of govern-
ment and at educational institutions. Provide for a
well funded research program with an earmarked revenue

Enforcement: provide environmental agencies with
the statutory alternative of administrative fines.


Local Government: in order to accomplish complete
delegation from the state agency to local government,

the local government may accept the program and the
state or regional agency must delegate the program
if it finds that the local government has:

a) provided by ordinance, regulation or local law for
requirements compatible with or stricter or more
extensive than those imposed by the applicable state

b) provided for the enforcement of such requirements
by appropriate administrative and judicial process;

c) provided for the administrative organization,
staff and other resources necessary to carry out the

I& I uzA-33








Parker, Skelding, McVoy & Labsky
Tallahassee, Florida

(Prepared for the Mid-Year Meeting of
the Florida Bar, January 21, 1988)

J. A. Jurgens practices law in Tallahassee, Florida with the
firm of Parker, Skelding, McVoy & Labasky. He received a
bachelor's degree in 1976 in Biology and a second bachelor's
degree in 1981 in Chemistry from the University of South
Florida. he received his J.D. with honors in 1986 from
Florida State University. A former editor of the Journal of
Land Use and Environmental Law, Mr. Jurgens has published
several articles on environmental permitting and, in 1986,
was awarded the Holland & Knight Environmental Law
Achievement Award. A member of The Florida Bar
Environmental and Land Use Law Section, his practice
involves predominantly environmental and land use permitting
and litigation.

Final recommendations of the EESC will be reviewed by Mr.
Jurgens in a subsequent article for Environemntal Network.

* ___ -


Whether the recommendations of the Environmental Efficiency
Study Commission will result in the Environmental Reorganization
Act of 1988 or the Partial Transfer Act of 1988 remains an
unanswered question. Regardless of the final regulatory structure
resulting from permitting program transfers and agency internal
reorganization, improving resource protection and increasing
efficiency in the environmental permitting process is governed by
fiscal, political and policy concerns.


From the fiscal standpoint, a heavily debated issue is the
question of adequate agency program funding. Initially, the
funding inequity between the water management districts
(Districts) must be resolved. Northwest Florida Water Management
District (NWFWMD) exercises water management responsibility for
sixteen counties with 1/20 the ad valorem tax capability of the
other four Districts. Operating on a budget of $4.2 million per
year, 80% of which are nonguaranteed funds, NWFWMD's budget pales
in comparison with the $80 $90 million per year budget of the
South Florida Water Management District. Granted, the South
Florida District's responsibility includes maintenance for the
extensive "plumbing" system of the District. Nonetheless, a
District operating only on $800,000 per year of guaranteed revenue
cannot and should not accept new responsibility and the NWFWMD
Executive Director has publicly voiced this concern.

The five Districts' combined budget of approximately $150
million per year to administer current water resource undertakings
is less than the budget of the City of Tallahassee. Permitting
program transfers to the Districts beyond existing regulatory
programs of the Districts must include funds earmarked for full
implementation of the responsibilities of those programs or
resource protection is jeopardized with associated inefficient
administration of responsibilities. The Commission has
conditioned new program assignments on adequate funding which
should include general revenue. Although the Commission proposes
to recommend amendments to the Florida Constitution equalizing the
constitutional limitation on ad valorem taxes for water management
purposes, the Commission failed, by vote, to recognize the
amendment as a precondition to program transfer.

Another aspect of the proposed funding recommendation would
allow regulatory agencies to set fees commensurate with the time
and cost attributable to processing permits and conducting
enforcement programs such as monitoring and surveillance of
permitted projects. This revenue generating proposal is long

overdue in the opinion of many experts and has found favor with
certain members of the development community. However, the fees
should be set aside in separate accounts for specific use in
permit programs and not for general agency expenses.

For successful implementation of the proposed
recommendations, funding for new program assignments as well as
additional funding for existing programs is a prerequisite to
efficient permitting and protection of the state's water
resources. Additional revenue sources that should be considered
include user fees, requiring agencies seeking to impose standards
more stringent than the statewide standards to bear the cost of
imposing those standards and specific designation of general
revenue sources for the water resource regulatory programs.

Associated with adequate funding as a precondition to
transfer are the documented personnel problems reducing the
effectiveness and efficiency of agencies involved in regulatory
programs. The Department of Environmental Regulation (DER) was
subject to a 35% turnover rate over a recent two year period. To
remedy turnover and motivation problems, professional career
growth paths and increased wages are necessary to reduce the
migration of agency staff to the private sector. Though it is
unclear whether the EESC will offer a detailed recommendation on
this issue, adequately trained and motivated professional staffs
are essential to increased regulatory efficiency.

A third major consideration to successful program transfer
and implementation is the centralization of data management and
research. At one time a precondition of point source program
transfer, coordinated data management is essential to rendering
regional decisions regarding natural resource systems. The
existing statutory authority for a central data repository in DER
should receive legislative review and specific funding sources.
Data coordination furthers interagency cooperation as required by
the state comprehensive plan. It is axiomatic that data exchange
facilitates efficiency in permitting.

Politics impacted the proposals regarding appellate review of
final agency action during Commission deliberations. After a
flurry of newspaper editorials and debate, the Commission reversed
its initial recommendation repealing S373.114 appeals and voted to
retain the appeal processes of both Chapter 120 and S373.114 in
District permitting programs. Proponents of retaining both appeal
avenues argue that retaining the Chapter 373 appeal process
maintains checks and balances in the permitting system. Repeal
would eliminate a layer of review by an elected body, the Governor
and Cabinet, of decisions rendered by the nonelected District
Governing Boards. While appellate review of final agency action

may serve a useful function, the proposal fails in one respect to
increase efficiency in the permitting process.

Inefficiency may be precipitated by certain third party
challenges. For instance, on January 26, 1988, the Governor and
Cabinet, sitting as the Florida Land and Water Adjudicatory
Commission, was scheduled to review a Request for Review of a
South Florida Water Management District (SFWMD) surface water
permit applied for by the Florida Department of Transportation
(DOT)(as of January 19, 1988, the agenda item was deferred until
February 9, 1988). On July 25, 1986, DOT filed its application.
On October 21, 1986 (two months later), the SFWMD staff
recommended approval of the application. The Neighbors for Clean
Canals filed a Petition for Formal Proceeding challenging the
issuance of the permit. After the evidentiary hearing, a
Recommended Order was issued on July 15, 1987 (one year after
filing the application) recommending issuance of the permit. The
District Governing Board concurred with the Recommended Order on
August 25, 1987. On September 14, 1987, the Neighbors for Clean
Canals filed the pending Request for Review of the Governing Board
decision. As a result of the request, the Governor and Cabinet
will be asked, over 1.5 years after the application was filed, to
rule on evidentiary matters adjudicated by the Hearing Officer
below as well as rule on alleged agency abuse of discretion. The
EESC's proposed permit program transfers would subject dredge and
fill and nonpoint source permitting applicants, both private and
public, to the same appellate process. Cabinet review of District
final action for these proposed program transfers may burden the
current Cabinet agenda.

Third parties with legally cognizable complaints should be
afforded access to the appellate system. At the same time, a
mechanism to reduce frivolous challenges should be proposed to
reduce potential abuse of the legal system. This statement in no
way suggests that the above example is a frivolous challenge but
the example demonstrates the substantial time delays incurred by
applicants during appeals while the debt service of the project
increases. Many environmental attorneys can relate a horror story
regarding third party challenges.

One avenue to address this political and agency policy issue
is to prescribe, by statute, a time certain by which a hearing
must be conducted following the filing of a petition challenging
final agency action to issue a permit. Analogous to the thirty-
day requirement under Fla. Stat. 120.54, it may be recommended
that a hearing in a permit challenge be conducted within ninety
days after assignment to a Hearing Officer unless the parties
stipulate to a continuance. In that the public will be afforded
the opportunity to participate in the District permit process and m
testify at the Governing Board meeting regarding permit issuance,

third parties with legitimate challenges should have researched
the issues and should be able to prepare for a hearing within the
ninety day time frame. Conversations with agency attorneys
subject to third party challenges has found some support for this

The EESC proposes transfer of dredge and fill and nonpoint
source (i.e. stormwater runoff) permitting programs to the
Districts with original jurisdiction for these programs in the
Districts effective October 1, 1989. A bill effective July 1,
1988 authorizing the original jurisdiction would provide one
year's time during which the Districts, working In conjunction
with DER, would take the original authority and consolidate all
dredge and fill and nonpoint source programs into one rule citing
diverse authorities to implement the new responsibility by the
October 1, 1989 deadline. Further, and a critical provision of
the recommendation, is that the legislature shall address all
needed policy issues,- such as jurisdiction, grandfathering, and
mitigation, necessary for the Districts to implement the dredge
and fill and nonpoint source program responsibilities. This
proposal triggers fiscal, political and policy considerations.

The transfer to the Districts is the logical extension of the
legislative mandate in Chapter 373. Fiscal concerns of available
funding, discussed above, are of primary importance to successful
implementation of this recommendation. The exclusive authority
vested in the Districts would eliminate multiple agency permits
for the same activity and, moreover, multiple third party
intervention would be eliminated. But the proposal fails to
clearly describe whether the DER or the District establishes
prevailing policy based on statewide or regional interests. The
proposal contemplates the Environmental Regulation Commission
(ERC) exercising a strong, oversight role but the ERC's
effectiveness in imposing policy on semi-autonomous regional
entities is questionable. Further, the request for legislative
guidance regarding mitigation, jurisdiction and grandfathering
reopens several political and policy issues fiercely debated
during the enactment of the Henderson Act of 1984.

Completing District regional rule proceedings in one year is
probably unreasonable. The Commission proposes that the ERC, the
standard setting entity of DER, adopt statewide standards which
the Districts could regionally adjust with ERC approval. The
proposal affords ERC approval of standards, not agency policy.
Therefore, the ERC must promptly adopt standards beginning July 1,
1988 enabling the Districts to complete regional rulemaking by
October 1, 1989. The Districts, to save time, could begin
rulemaking and incorporate by reference the ERC statewide
standards but regional variations would not be reflected requiring

the Districts to conduct additional rulemaking to incorporate
regional standards in the permit programs of the District.

A plausible argument has been made that the elaborate
statutory transfer plan for dredge and fill and nonpoint source
permits is unnecessary if dredge and fill transfer based on the
nature of the activity is the goal. The St. Johns Water
Management District recently approved an operating agreement with
DER affording the District nonpoint source and dredge and fill
permit authority for specific enumerated projects. The partial
delegation fails to accomplish the resource based permitting
concept of some individuals, however, a measure of permitting
efficiency would be created. The procedure for transfer, either
by statute, rule or memorandum of understanding, is the threshold
issue in evaluating the merits of the EESC proposal.
Notwithstanding, if the program intends a transfer to all five
districts, specific statutory amendments would be a prerequisite
to transfer.

The proposal targets increased efficiency but unsatisfied
preconditions of funding and personnel may render increased
efficiency a nullity. Political, policy and fiscal issues are
outstanding and will require resolution in the legislative forum.

Point source discharge (i.e. sewage treatment plants) into
surface waters -is to be retained in DER with an Interim Study
completed by October 1, 1992, to determine the extent, Ji any, of
transferring additional water Buality programs to the Districts.
The August, 1987 Non-Final Recommendations of the Commission
provided the Districts with exclusive statutory authority to
permit point source as well as nonpoint source discharges. The
proposed consolidation of related water resource programs at the
District level furthered the resource based permitting agenda of
the environmental community. The Commission reversed its proposal
by first delaying any point source transfer to the Districts until
1994. Subsequently, the Commission removed any specific transfer
date from the Recommendations contingent upon the Interim Study.
Technical expertise currently concentrated in DER must be imparted
to the District level before transfer of programs could be
accomplished. Federal participation in point source programs and
local government regulation of pretreatment prior to discharge are
topics remaining unresolved by the Commission. In response to
proposed point source transfer, the SFWMD Executive Director
informed the Commission that the Districts should promote an
activity based permitting system including stormwater and dredge
and fill programs. Thus, additional time to resolve outstanding
issues and monitor the obstacles raised by the proposed dredge and
fill and nonpoint source transfer is proper before rendering a
conclusive recommendation.

Another major controversial proposal is the recommendation
regarding dredge and fill projects on sovereignty submerged lands.
The root of the problem is the environmental assessment function
of DER contrasted with the proprietary ownership function of the
Department of Natural Resources (DNR) when extended to evaluating
environmental considerations. As proposed, the Trustees of the
Internal Improvement Trust Fund would adopt rules for sovereign
submerged land and aquatic preserve management which would be
administered by the Districts. District approvals would be
appealable pursuant to S373.114 or review may be initiated by the
Trustees pursuant to rules adopted by the Trustees. The Trustees
would adopt rules specifying thresholds beyond which the Trustees
would conduct an automatic review of District decisions. District
decisions would be final unless appealed under S373.114 within
twenty days or by Cabinet motion within thirty days after District
final agency action.

The proposed solution, in the opinion of the DNR,
decentralizes and dilutes the Trustees' authority and weakens the
entire Trusteeship's responsibilities. The proposal splits
responsibility for the management of state owned lands and affords
the nonelected District Governing Boards total implementation and
interpretation of the Trustees' rules. The proposal would appear
to hinder the Trustees asserting ,dveloping policy regardiW its
fiduciary relationship with public lands from being effectuated
absent appeal of the District action by the Governor and Cabinet.
Efficiency in the system is not served by requiring such an.appeal
to implement developing policy. Further, the appeals under
S373.114 do not recognize the legislative policy in Chapter 253
and therefore amendments to Chapter 373 will be necessary to
reflect this major enabling legislation of the Trustees.

Further influencing an analysis of this proposal is the
ongoing rule development by DNR designed to advance efficiency in
approving sovereign submerged land uses. DNR proposes that a
single family dock exemption outside of aquatic preserves would
cover 40% of all previous applications. DNR asserts that, upon
completion of rule development, 60% of single family docks will
not be required to obtain Trustee approval for use of sovereign
submerged lands. Also, DNR has implemented a management time
clock and a computer tracking system to facilitate processing of
applications. DNR further has completed opening seven regional
offices to expedite permit review. Whether these internal changes
reduce prior recognized inefficiency is .debatable but is a
positive response to efficiency questions by DNR. Addressing the
extent of remaining overlap and duplication must be balanced
against the policy considerations of state land ownership. This
proposal should be intensely debated in the legislative arena.

Another controversial recommendation of the Commission are
amendments to the conceptual agency review process found in
Chapter 380 of the Florida Statutes. Agencies requiring permits
would be required to participate in conceptual agency review
including attendance at preapplication conferences. The DRI
applicant would be required to participate unless the applicant
provides notice to the regional planning council (RPC) opting out
of the conceptual agency review process no later than ninety (90)
days after the preapplication conference. The agencies would
adopt conceptual permit rules by July 1, 1989 with conceptual
review governed by Chapter 120 and subject to the default
provisions under Chapter 120. If an agency grants conceptual
approval, the RPC would comment on regional implications of the
approval but would be barred from offering conflicting
recommendations. The RPC would forward all agency reports and the
regional report to the local government which would be guided by
the reports. The local government Development Order (DO) would be
required to be consistent with the conceptual agency approval or
the intent to issue a permit unless the approval or intent would
conflict with the local government's adopted comprehensive plan or
land development regulations. As required by law, all DO
conditions would be based upon and consistent with the local
government adopted comprehensive plan or land development
regulations. Finally, and possibly the most controversial
recommendation, a local comprehensive plan found in compliance
with the Local Government Comprehensive Planning and Land
Development Regulation Act of 1985 results in the local government
unable to impose conditions on a DRI development that could not be
imposed on a similar non-DRI development.

This argumentative recommendation amending conceptual agency
review attempts to create incentives in the conceptual agency
review program currently not found in the program. Limiting the
authority of the RPC and the Department of Community Affairs and
further binding a local government DO to the terms of agency
reports absent local planning conflicts are issues subject to
intense debate. Commentators have objected to the proposal
arguing that the proposed transfer of permit programs causes
uncertainty in resource protection and therefore altering the
checks and balances function of the RPCs, the DCA and local
governments for projects of regional impact is premature.
Further, the proposal presupposes that each local government's
comprehensive plan will contain the necessary natural resource
elements addressing local concerns so that local governments may
issue a DO conflicting with the agency reports if necessary to
address those concerns. One objection to restricting local
government discretion in issuing a DO is that what may be
considered a local, or even regional concern, may not be a concern
of a state agency or the Districts. Thus, an additional burden
falls upon local governments to incorporate local concerns in the

local plans in response to this proposal. The recommendation
offers increased efficiency in the overall permitting scheme for
projects of regional impact. Again, the legislature may be asked
to balance competing interests.

The 1987 reauthorizing legislation extending the life of the
EESC added the responsibility of Commission review of local
government environmental laws and rules for duplication and
inefficiency. The Commission failed to reach a consensus on
multiple local government environmental issues. The proposal
recommends that permitting and regulatory programs be delegated to
local governments wherever an acceptable local program exists
pursuant to the compliance criteria in Chapter 403. Demonstrated
compliance would result in mandatory delegation. In providing
adequate funds for local permit programs, statutory restrictions
on fee schedules should be amended or deleted and funds designated
in the state or regional programs that would have been expended
without local government delegation should be transferred to the
local government.

The Commission failed to agree on the issue of whether
municipalities should have the option of accepting delegation and,
if refused, whether counties with delegation could issue permits
on behalf of the municipality. A second issue remaining
unresolved is the ERC role of reviewing District standards and
"whether that role applies, or does not apply, to local standards.
A third issue focuses upon the imposition of Chapter 120
procedures on local government programs.

Goals eight and sixteen of the state comprehensive plan
supply broad authority for local government involvement in
environmental issues. In fact, local governments may, through
land planning functions, steer projects that adversely impact
water resources away from those resources. The extent of local
government participation in environmental protection will be
judged after review of the land development regulations required
by Chapter 163. Thus, extensive recommendations may have been
considered premature until the environmental elements of the
growth management program are effective.

The discussion above highlights several of the major
recommendations proposed by the EESC but is in no way to be
construed as an exhaustive analysis. The Commission will render
recommendations on other issues which should be reviewed and
analyzed in detail when the Final Report is issued. Overall, the
proposed recommendations reflect a shift over several months from
what appeared to be a resource based permitting agenda to an
activity based permitting program. One criticism of the
Commission was that a philosophical approach to water resource
_ management was not agreed upon prior to proposing recommendations.

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