Title: Letter from Wade Hopping to Frank X. Friedmann commenting on how local governments might participate in environmental regulation activities. Nov. 23,
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Title: Letter from Wade Hopping to Frank X. Friedmann commenting on how local governments might participate in environmental regulation activities. Nov. 23,
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For these reasons, the FCG opposes the mandatory delegation
of point source standard setting and regulation to local
governments. Programs such as those involving NPDES per-
mitting, water quality, air quality, hazardous wastes, and
transportation route siting would be hampered and rendered
less efficient by the imposition of "stricter or more
extensive" local regulation. If delegation of standard
setting to local government is authorized or required, any
more stringent, more extensive or otherwise inconsistent
local regulations should, at a minimum, be subject to
specific prior approval by the ERC.












The Commission's proposed solution is set forth without a
statement of the problem or an explanation of the issues.
Nevertheless, the FCG believes the Commission's recommenda-
tions may tend to encourage local governments to adopt
environmental standards that are more stringent than, and
inconsistent with, the applicable state standards. Such a
result would tend to exacerbate, rather than correct,
inefficiencies in the present regulatory scheme.

During the early days of environmental regulation, it was
fairly common for local governments to adopt local standards
more stringent than federal or state standards. Often these
standards took the form of exclusionary zoning type regula-
tions designed to prevent the location of locally unpopular
land uses, such as landfills, hazardous waste sites,
resource recovery facilities, power plants, etc.

Current law recognizes that counties and municipalities may
establish local pollution control programs under s. 403.182,
F.S. That same section also provides, however, that if
regulation of a particular class of pollution sources is
beyond the capability of local pollution control authori-
ties, or can be more efficiently and economically performed
at the state level, DER may assume and retain exclusive
jurisdiction over that class of sources, s 403.182(4) (d),
F F.S. Recognizing that environmental issues may transcend
local political boundaries, certain other statutory pro-
visions presently allow state preemption, limitation or
override of local government environmental and land use
regulations in specific cases: Power Plant and Transmission
Line Siting Acts; Pollutant Spill Prevention and Control
Act; State Underground Petroleum Environmental Response Act;
Florida Resource Recovery and Management Act; Development of
Regional Impact Law.

The sound policies underlying current law may be undercut if
local governments are encouraged to adopt environmental
standards more stringent than state standards. This would
be particularly troublesome in view of the evolution of
state and federal regulatory programs under which environ-
mental standards have come to reflect a more sophisticated
balancing of complex technological 'and public health con-
siderations. The FCG therefore believes it is neither cost
effective nor environmentally efficient to encourage local
governments to duplicate the manpower and resource expendi-
tures needed to independently establish standards that
regulate relatively complex point sources, or to "staff up"
to license such facilities when they are few in number.








Frank X. Friedmann, Jr., Esquire
November 23, 1987
Page 5






bcc: Tom Fair
George Layman
Lunch Bunch
Don Spencer
Mike Garretson
Peter Cunningham
Bill Green
Betsy Bowman
Richard Brightman
Frank Matthews








Frank X. Friedmann, Jr., Esquire
November 23, 1987
Page 4






I hope that you will keep me posted on the progress of
this issue. For your convenience, I am attaching an extra
copy of the FCG recommendation on the issue of local
governments. I hope the Commission will give it its careful
consideration. Subsequent to my presentation, Tony Clemente
advised me that he didn't think his group would have any
problem with our approach, that is, requiring the ERC to
approve any more stringent, different or unique locally
adopted standards before they became effective. He also
gratuitously advised that at least his program would not
have a problem with having Chapter 120 applied to it. I am
sure that his program is unique in that regard.

With best wishes for a Happy Holiday season,


Sincerely,





Wade L. Hopping

WLH/gs

Ends.








Frank X. Friedmann, Jr., Esquire
November 23, 1987
Page 3






adopted comprehensive plan and shall as a
minimum:

(a) Regulate the subdivision of land;

(b) Regulate the use of land and water
for those land use categories included in
the land use element and ensure the
compatibility of adjacent uses and
provide for open space;

(c) Provide for protection of potable
water wellfields;

(d) Regulate areas subject to seasonal
and periodic flooding and provide for
drainage and stormwater management;

(e) Ensure the protection of
environmentally sensitive lands
designated in the comprehensive
plan; .

I believe the use of the phrase "or desirable" gives the
local government sufficient latitude to avoid having its own
regulatory program. I do believe, however, that the
ordinances must speak to the issue. I think that this would
authorize the local programs to require that someone get a
necessary permit from the DER or water management district
on a subject matter within the four corners of the plan.

Frank, I do appreciate your calling this matter to my
attention. I intend to call it to the attention of a number
of other people, as in my view it would be a disaster if
each and every local government in the state entered into
the regulation permitting and standard setting aspects of
the same programs which are currently regulated by the DER,
DNR and water management districts. What a collosal waste
of scarce, economic resources. I don't believe our
Legislature intended such a waste. Only those who wanted to
stop development business and industry cold in its tracks
could advocate such a position. Such a position seems
inconsistent to the position of environmental leaders, such
as Charles Lee, David Gluckman, and Manley Fuller of the
Florida Wildlife Federation, not to mention being
inconsistent with the avowed purposes of many of our best
environmental regulators.








Frank X. Friedmann, Jr., Esquire
November 23, 1987
Page 2






Florida is an interesting state. Our growth over the
last 15 to 20 years has averaged between 250,000 and 400,000
people in net immigration each and every year. As our state
grows and our areas become more populated and congested
there will be an increasing tendency on the part of local
governments to want to exclude from their community locally
unpopular land uses, such as land fills, power plants,
hazardous waste collection stations, resource recovery
facilities, etc. Florida just can't afford a hodgepodge of
local regulation without some statewide oversight. For this
reason, the Florida Electric Power Coordinating Group
strongly recommended that no local government be authorized
to enact a more stringent, different, or unique
environmental regulatory program without first having met
the requirement that their standards be approved by the
ERC.

I would go further; I would give to the ERC the power to
modify or amend those standards. Manatee County already has
a standard which absolutely prohibits coal-fired facilities
of any type within their boundary. There is no rhyme nor
reason to justify that regulation. It is purely
exclusionary on their part.

Secondly, I would suggest that the Commission call upon
the University of Florida Center for Policy Development and
ask them to advise the Commission whether or not it is their
view that local governments must have environmental
regulatory programs to carry out provisions of the Local
Comprehensive Planning Act. If so, which kinds of programs
and regulations must they have. Having once ascertained the
Center's position, I would also then attempt to ascertain
through the Commission the Department of Community Affair's
view on this same subject. If these two groups believe that
Chapter 163 requires local governments to massively enter
environmental regulatory program areas, I would suggest that
your Commission should have a 'recommendation to the
Legislature on whether or not Chapter 163 should be amended
in this regard. Frankly, I believe that Chapter 163 does
not require that a local government enter this kind of
program area, except for the few programs outlined
specifically in subsection 163.3202(2) (a) through (f). Even
in that regard, the operating language of subsection
163.3202(2) is that the

Local land development regulation shall
contain specific and detailed provisions
necessary or desirable to implement the









i
HOPPING BOYD GREEN & SAMS
ATTORNEYS AND COUNSELORS
SUITE 420, FIRST FLORIDA BANK BUILDING
CAR ALAR POST OFFICE BOX 6526
CARLOS ALVAREZ JAMES S. ALVES
BRIAN H. BIBEAU TALLAHASSEE, FLORIDA 32314 KATHLEEN BLIZZARD
ELIZABETH C. BOWMAN (904) 222-7500 ANNE W. CLAUSSEN
WILLIAM L. BOYD, IV C. TIMOTHY GRAY
RICHARD S. BRIGHTMAN ELEANOR M. HUNTER
PETER C. CUNNINGHAM DAVID L. POWELL
WILLIAM H. GREEN CHERYL G. STUART
WADE L. HOPPING November 23, 1987
FRANK E. MATTHEWS
RICHARD D. MELSON OF COUNSEL
WILLIAM D. PRESTON ROBERT
CAROLYN S. RAEPPLE
GARY R SAMS
ROBERT P SMITH, JR.

Frank X. Friedmann, Jr., Esquire
Rogers, Towers, Bailey, Jones & Gay
1300 Gulf Life Drive
Jacksonville, Florida 32207

Dear Frank:

It certainly was a pleasure to see you th.e other day at
the Environmental Efficiency Study Commission meeting. On
Sunday, after I returned home, I spent some time reading and
digesting Marsha Parker's memorandums of October 30th and
November 16th. I also took a good look at Susan Lubitz's
proposal on how local governments might participate in
environmental regulation activities. Finally, I spent some
time pondering your alarming news that the University of
Florida Center for Policy Development was advising local
governments that they must enact local pollution control
programs.

In response to your request for comments I believe it
would be an absolute disaster to turn four hundred some
local governments loose on individually crafted, more
stringent or different pollution control programs. As I
told the Commission, many types of environmental matters
clearly transcend local governmental boundaries. Even when
one tries to roughly define air basins, it is beyond a doubt
that air is no respecter of political boundaries. As a
matter of fact, if you study the acid rain problem, Canada
is complaining because of American industries, and the South
is suffering because of activities 'in the North.

So, too, in the regulation of water, particularly
surface waters. It is hard for me to see how the regulation
of the St. Johns River should be somehow in the hands of
thirty or forty local governments, each with a different
view of how that surface water should be managed.

You, probably more than anyone else, have a great
feeling for the fact of what a disaster would be if local
governments could control consumptive use of water, rather
than regional water authorities such as the water management
district controlling that activity.





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