• TABLE OF CONTENTS
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 Title Page
 Table of Contents
 Introduction
 Part I: Analysis of powers
 Part II: Activities
 Conclusion






Group Title: Technical paper - Florida Sea Grant Program ;, no. 13
Title: Local control over the onshore impacts of offshore energy development in Florida
CITATION PAGE IMAGE ZOOMABLE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/UF00072272/00001
 Material Information
Title: Local control over the onshore impacts of offshore energy development in Florida
Series Title: Technical paper - Florida Sea Grant College Program no. 13
Physical Description: 103 p. : ; 28 cm.
Language: English
Creator: Woodson, R. D
Tannen, Marc J. ( joint author )
Corbett, John J. ( joint author )
University of Florida -- Center for Governmental Responsibility
Florida Sea Grant Program
Publisher: Center for Governmental Responsibility, University of Florida, Holland Law Center
Place of Publication: Gainesville
Publication Date: 1979
 Subjects
Subject: Coastal zone management -- Law and legislation -- Florida   ( lcsh )
Energy policy -- Environmental aspects -- Florida   ( lcsh )
Genre: government publication (state, provincial, terriorial, dependent)   ( marcgt )
bibliography   ( marcgt )
non-fiction   ( marcgt )
 Notes
Bibliography: Includes bibliographical references.
Statement of Responsibility: by R. D. Woodson, Marc J. Tannen, John J. Corbett.
General Note: On cover: Florida Sea Grant.
General Note: "This document ... was developed with support from the NOAA Office of Sea Grant, U.S. Department of Commerce, grant number 04-8-M01-76."
Funding: Technical paper (Florida Sea Grant College) ;
 Record Information
Bibliographic ID: UF00072272
Volume ID: VID00001
Source Institution: University of Florida
Holding Location: University of Florida
Rights Management: All rights reserved, Board of Trustees of the University of Florida
Resource Identifier: aleph - 000990241
oclc - 05525831
notis - AEW7153

Table of Contents
    Title Page
        Title Page 1
        Title Page 2
    Table of Contents
        Table of Contents 1
        Table of Contents 2
    Introduction
        Page 1
        Page 2
        Page 3
    Part I: Analysis of powers
        Page 4
        Page 5
        Page 6
        Coastal zone management
            Page 7
            Federal law
                Page 7
            Coastal zone management act
                Page 8
                Page 9
                Page 10
                Page 11
                Page 12
            State response
                Page 13
                Page 14
                Page 15
                Page 16
                Page 17
                Page 18
                Page 19
                Page 20
        State comprehensive planning
            Page 21
            State comprehensive plan
                Page 21
            Interstate cooperation
                Page 22
            Local comprehensive planning
                Page 23
                Page 24
                Page 25
            Municipal subdivisions
                Page 26
            Regional planning councils
                Page 27
            Environmental land and water management
                Page 27
                Page 28
                Page 29
        Footnotes
            Page 30
            Page 31
            Page 32
            Page 33
        Environmental control
            Page 34
            Federal law
                Page 34
                Page 35
                Page 36
            State law
                Page 37
                Page 38
                Page 39
                Page 40
                Page 41
                Page 42
                Page 43
                Page 44
                Page 45
    Part II: Activities
        Page 46
        Page 47
        Page 48
        Offshore oil and gas development
            Page 49
            Offshore leases
                Page 49
            Development activity
                Page 50
                Page 51
                Page 52
                Page 53
                Page 54
                Page 55
                Page 56
                Page 57
                Page 58
                Page 59
                Page 60
                Page 61
                Page 62
                Page 63
                Page 64
                Page 65
                Page 66
                Page 67
                Page 68
                Page 69
                Page 70
                Page 71
                Page 72
                Page 73
                Page 74
                Page 75
                Page 76
                Page 77
        Deepwater ports and shipping
            Page 78
            Deepwater ports - Facilities and impacts
                Page 78
                Page 79
            Shipping - Volume and impacts
                Page 80
            Local control of deepwater ports
                Page 81
                Page 82
            Local control of shipping
                Page 83
                Page 84
                Page 85
                Page 86
                Page 87
                Page 88
                Page 89
        Offshore power plants
            Page 90
            Introduction
                Page 90
            Activities
                Page 90
                Page 91
                Page 92
                Page 93
            Legal controls
                Page 94
                Page 95
                Page 96
                Page 97
                Page 98
                Page 99
                Page 100
    Conclusion
        Page 101
        Page 102
        Page 103
Full Text
t/3


LOCAL CONTROL OVER THE ONSHORE IMPACTS OF
OFFSHORE ENERGY DEVELOPMENT IN FLORIDA
by
R. D. Woodson
Marc J. Tannen
John J. Corbett


CENTER FOR GOVERNMENTAL RESPONSIBILITY
University of Florida
Holland Law Center
TECHNICAL PAPER NO. 13
June 1979


Florida Sea Grant


C

















LOCAL CONTROL OVER THE ONSHORE IMPACTS OF
OFFSHORE ENERGY DEVELOPMENT IN FLORIDA
by
R. D. Woodson
Marc J. Tannen
John J. Corbett

CENTER FOR GOVERNMENTAL RESPONSIBILITY
University of Florida
Holland Law Center

TECHNICAL PAPER NO. 13
June 1979



RELATED PUBLICATIONS

An informative but less detailed advisory bulletin, MAP-7,
same title, can be obtained from the Marine Advisory Program,
G022 McCarty Hall, University of Florida, Gainesville, FL 32611.








This document is a Technical Paper of the State University
System of Florida Sea Grant College Program, 2001 McCarty Hall,
University of Florida, Gainesville, FL 32611, which was devel-
oped with support from the NOAA Office of Sea Grant, U.S. De-
partment of Commerce, grant number 04-8-M01-76. Technical
Papers are duplicated in limited quantities for specialized
audiences requiring rapid access to information which may be
unedited.









TABLE OF CONTENTS


Page

INTRODUCTION 1

PART ONE: ANALYSIS OF POWERS 4

I. Coastal Zone Management 7

A. Federal Law 7

B. Coastal Zone Management Act 8

C. State Response 13

II. State Comprehensive Planning 21

A. State Comprehensive Plan 21

B. Interstate Cooperation 22

C. Local Comprehensive Planning 23

D. Municipal Subdivisions 26

E. Regional Planning Councils 27

F. Environmental Land and Water Management 27

III. Environmental Control 34

A. Federal Law 34

B. State Law 37

PART TWO: ACTIVITIES 46

I. Offshore Oil and Gas Development 49

A. Offshore Leases 49

B. Development Activity 50

II. Deepwater Ports and Shipping 78

A. Deepwater Ports Facilities and Impacts 78

B. Shipping Volume and Impacts 80

C. Local Control of Deepwater Ports 81

D. Local Control of Shipping 83










III. Offshore Power Plants 90

A. Introduction 90

B. Activities 90

C. Legal Controls 94

CONCLUSION 101











INTRODUCTION


Conflict over energy related activity off the coast of the United States

may cause a division between states and the federal government which could

threaten both the nation's emerging energy policy and state attempts to

protect the coastal environment. At the same time states are developing

coastal zone management plans, the federal energy program continues to evolve.

Energy activities in the coastal zone which are likely to cause conflict

include oil and gas production, shipping and deepwater ports, and offshore

power plants. Many states are already acting in these areas to protect

their own interests.

In Florida the clash between offshore energy activity and the coastal

environment is expected to be great. The map illustrates potential areas

of offshore development which could affect Florida. Most of Florida's

population resides along the coast, and the economy is largely dependent

on tourists who were attracted by the coastal environment. Although coastal

management is necessary to protect native population, the environment,

and the tourist-based economy, new sources of energy are needed for the

state to support economic development. Florida imports in excess of ninety

percent of all energy used in the state.2 Since there are very few

resources onshore, the state must look offshore for new sources.

Florida coastal policy is entering a new stage with the passage of

the Coastal Zone Management Act of 1978.3 Rather than enacting a comprehensive

coastal policy, the legislature has chosen to rely on existing state and

local laws to implement the coastal program. Part One of this paper

presents existing state programs which can be utilized in encouraging,









discouraging or controlling offshore energy development and corresponding

onshore energy activity. The potential for local action is emphasized

because of the nature of Florida's new direction, which seems to give local

governments a predominate role in coastal zone management.

Unfortunately, decisions affecting offshore activity are made at

the federal and state level while local governments are often left with

the problem of coping with onshore impact. This problem is usually

handled on an ad hoc basis using reactive controls. Municipal and county

officials usually have a poor idea of the range of options available to

them in reacting to or planning for the effect offshore activity will

have. Part Two describes the different offshore activities possible for

Florida and the potential onshore facilities. The methods for encouraging,

discouraging, or regulating this activity, within existing state and

federal law, are suggested.








FOOTNOTES


1For example, Washington attempted to prohibit supertankers carrying
oil from entering Puget Sound. Ray v. Atlantic Richfield Co. &
Seatrain Lines, Inc., 435 U.S. 151 (1978). A group of New York counties
and cities attempted to block an O.C.S. lease sale by challenging
statement. County of Suffolk v. Secretary of the Interior, 562 F.2d 1368
(2nd Cir. 1977); cert. denied 434 U.S. 1064 (1978).

2Florida Energy Office, Annual Report to the Legislature (1978).

Fla. Laws, CH. 78-287 (1978).








PART ONE: ANALYSIS OF POWERS


An analysis of the onshore impact of offshore energy activity must

consider the interaction of laws at the federal, state, and local level.

For example, while much of offshore drilling may take place in areas of

exclusive federal jurisdiction,l the associated onshore impacts, such as

connecting pipelines, storage facilities and refineries, will be subject

to state and local regulation. While Part One does not purport to be

exhaustive of all relevant federal, state and local law, it is intended

to give the reader an idea of how state and local governments may regulate

and where the federal government is preeminent.

The supremacy clause of the United States Constitution provides the

basis for federal preeminence in matters involving state and federal regulations.2

This power is not absolute, however. Recent decisions indicate that before

the Supreme Court will find a state law to be in conflict with a federal law

regulating the same field, there must be specific Congressional preemptive
3
intent. In matters of defense and international affairs, federal policy

is paramount, and no state may contravene federal activity in these areas.

In other areas, the federal government may call for cooperation with the

states in an attempt to regulate a specific matter. For example, the Federal

Water Pollution Control Act, as amended in 1972, calls for cooperation

with the states in the control and abatement of water pollution and accords
4
the states authority to create water management plans. After Askew v.

American Waterway Operators the source of pollution, resulting from an oil

spill or any other form of discharge entering state territorial waters, will

be subject to concurrent state and federal jurisdiction for clean-up activities.








The Coastal Zone Management Act provides for federal consistency,

requiring federal agencies and activities to comply with state regulations

under coastal zone management plans approved by the federal government.

The Deepwater Ports Act also provides for extensive state participation
7
in the siting of deepwater ports off their coasts.

In some areas, particularly environmental quality, the federal

government has expanded the scope of its regulatory powers. The Clean Air

Act of 19638 provided for federal assistance at state and local levels

to encourage development of regulatory controls and emphasized that primary

responsibility should be with the state and interstate authorities. The

amendments of 1970, however, call for a tightening of federal controls

and recognize air quality as more of a national problem, placing in the

federal government primary responsibility for air pollution control.9

The discussion of the relative federal, state, and local authority in

the coastal zone is divided into Coastal Zone Management, Comprehensive

Planning, and Environmental Control.







FOOTNOTES


1See, Offshore Oil and Gas Drilling, Part Two, I, infra.

Art. VI, cl. 2.

3Note, The Preemption Doctrine: Shifting Perspectives on Federalism
and the Burger Court, 75 Colum. L. Rev. 623 (1975).

33 U.S.C. 1251 et seq.

5Askew v. American Waterways Operators, 411 US 324 (1973).

616 U.S.C. 1451-1464.

733 U.S.C. 1501 et seq.

842 U.S.C. 1857.

91d.










I. COASTAL ZONE MANAGEMENT

A. Federal Law

Analysis of coastal zone management must begin with the question of owner-

ship, that is, the extent of ownership of the coastal land and territorial

waters by the state and federal governments. In 1947, the U.S. Supreme Court

determined that the federal government was the sole owner of all lands below

the low water mark.1 This decision was partially supplanted by Congress with

2
the enactment of the Submerged Lands Act of 1953. The Submerged Lands Act

gave all rights, title, and interest owned by the United States to the states

with the exception of those powers reserved to the federal government. The

state's interests were to be exerted over the water, the land under the water,

and the natural resources in an area extending three miles seaward from the
3
states' boundaries. In contrast to this grant of power to the states, the

Outer Continental Shelf Act, also enacted in 1953, limited state control by

placing all submerged lands seaward of the three mile limit under federal
4
control. As a result of these two acts, states gained increased control,

subject to certain powers, of a three mile strip off the coast, while the fed-

eral government asserted total control beyond the three mile limit.5

The federal government retained authority within the three mile limit

for the purposes of navigation, flood control, and production of power. The

production of power clause is particularly important in the consideration of

relative state and federal jurisdiction in the coastal zone. Yet there is a

still broader reservation of powers in the Submerged Lands Act which the fed-

eral government could use to assert control in the coastal zone. Section

1314 states that:










I. COASTAL ZONE MANAGEMENT

A. Federal Law

Analysis of coastal zone management must begin with the question of owner-

ship, that is, the extent of ownership of the coastal land and territorial

waters by the state and federal governments. In 1947, the U.S. Supreme Court

determined that the federal government was the sole owner of all lands below

the low water mark.1 This decision was partially supplanted by Congress with

2
the enactment of the Submerged Lands Act of 1953. The Submerged Lands Act

gave all rights, title, and interest owned by the United States to the states

with the exception of those powers reserved to the federal government. The

state's interests were to be exerted over the water, the land under the water,

and the natural resources in an area extending three miles seaward from the
3
states' boundaries. In contrast to this grant of power to the states, the

Outer Continental Shelf Act, also enacted in 1953, limited state control by

placing all submerged lands seaward of the three mile limit under federal
4
control. As a result of these two acts, states gained increased control,

subject to certain powers, of a three mile strip off the coast, while the fed-

eral government asserted total control beyond the three mile limit.5

The federal government retained authority within the three mile limit

for the purposes of navigation, flood control, and production of power. The

production of power clause is particularly important in the consideration of

relative state and federal jurisdiction in the coastal zone. Yet there is a

still broader reservation of powers in the Submerged Lands Act which the fed-

eral government could use to assert control in the coastal zone. Section

1314 states that:








The United States retains all its navigational servitude and
rights in and powers of regulation and control of said lands and
navigable waters for the constitutional purposes of commerce,
navigation, national defense, and international affairs, all of
which shall be paramount to, but shall not be deemed to include,
proprietary rights of ownership, or the rights of management,
administration, leasing, use, and development of the lands and
natural resources. .7

Thus a state's ownership in its coastal waters is subject to the strongest

powers the federal government has, commerce and defense. Any application of

these powers over coastal zone activity by the federal government could have

a great impact on the states in either of two ways. First, the federal gov-

ernment could utilize its power to prevent development of shoreline areas des-

ignated by states for ports, energy facilities, private development, or public

recreational improvements. Second, if the federal government is involved in

outer continental shelf activity, deep water ports, or perhaps nuclear waste

disposal, it could utilize its powers to authorize development of areas the

states might desire to leave untouched. This federal power is not limited to

offshore development, but extends to onshore support facilities if a denial

of such facilities by a state would burden interstate commerce or national

defense. An attempt to resolve this potential conflict came with the passage

of the Coastal Zone Management Act and subsequent amendments.


B. Coastal Zone Management Act

The primary thrust of the Coastal Zone Management Act (CZMA)8 is to

establish a federal granting program to assist the states in developing and

operating management programs for their coastal land and water resources.

The CZMA does not require state participation nor define the coastal zone in

affected states. Rather, the intent was to encourage states to undertake their

own coastal programs using federal funds.

The CZMA can be separated into two stages. The first is concerned with









the development of sound management programs while the second is concerned

with the implementation of these programs by the state.

If a state decides to participate, it will receive a planning grant to

develop a management program. Under 305 of the Act, the federal government

will pay two-thirds9 of the cost of developing the program provided a few

basic guidelines are met. These guidelines are: (1) the identification of

the boundaries of the coastal zone;10 (2) a definition of permissible land
11 12
and water uses;1 and (3) a designation of areas of particular concern. A

further requirement is the "identification of the means by which the state

proposes to exert control over land and water uses."l3 Implicit in this re-

quirement is the real substantive thrust of the Act. Land use controls have

traditionally been within the province of the counties, municipalities, and

townships. The CZMA was designed to encourage state governments to reclaim

the predominant decision-making role. Hence the fundamental purpose of the

Act is to broaden the focus of coastal zone decision-making so as to incor-

14
porate a statewide view.4

There are few restrictions placed on the states in the development phase.

A state must demonstrate to the Secretary of Commerce that the grant money

will be used to develop a management system consistent with the requirements

of 306 covering implementation.15 The state must also coordinate, cooperate,

and consult with local governments and regional and federal agencies in making'

up its plan. Finally, the state must consider ". .the national interest

involved in the siting of facilities. .which are other than local in nature.'16

The implementation phase of the CZMA is also funded by the federal govern-

ment.7 In order to qualify for a grant at this stage, the plan developed in

305 must be approved by the Secretary of Commerce.18 The requirements for

approval are that the state plan provide for adequate notice to and full







participation of all relevant federal, state, and regional agencies, as well

as local governments; an established and effective mechanism for continued

cooperation with these parties; the authority to implement the program; and

a mechanism for consideration of any national interest involved in siting
19
facilities necessary to meet requirements which are other than local in nature.1

The implementation phase dictates use of one of three techniques for controlling
20
land use. The last major requirement is that the plan include a method for

assuring that local land and water use regulations within the coastal zone do

not unreasonably restrict or exclude uses of regional benefit.21

There is another incentive for state development of an approved coastal

zone management program, apart from the lure of administrative grants. The

state can theoretically achieve significant control over federal activities

within the coastal zone by securing management program approval. Section

307(c) of the CZMA provides that federal agencies shall conduct activities

and undertake projects in a manner which is "to the maximum extent practicable,

consistent with approved state management programs." Furthermore, applicants

for federal licenses or permits must get state certification that the activity

for which the approval is required is consistent with the approved state

management program. For example, a dredge and fill permit from the Corps of

Engineers would not be issued until certified as in compliance with an approved

coastal zone management program. However, if a state does not act upon an

applicant's certification within six months, it is conclusively presumed to

be consistent with the state's plan.22 If the state disagrees with the

federal government's certification of a project, then the Secretary is required,

after detailed comments from state and federal agencies, to make a finding of

consistency with the objectives of the CZMA. If a proposed activity is found

to be inconsistent with CZMA objectives, a permit can still be issued if it









23
is in the interest of national security or commerce. This national security

provision is untested, but could provide a means for federal activities to

escape the theoretical state control provided in the Act.

The six month period for state approval of activities, plus the time in-

volved to obtain an override of the refusal of certification,gives the states

a useful tool in the development of the coastal zone. For example, the many

licenses needed for OCS development and the "directly effecting" language of

307 would allow a state to delay such development for a long period of time.24

Yet the language of 307(e) states that "nothing in this title can be construed

to diminish either federal or state jurisdiction, responsibility, or rights

in the field of planning, development, or control of water resources, submerged

,25
lands, or navigable waters. .25 This clause plus the reserved federal

powers under the Submerged Lands Act would prevent a state from indefinitely

delaying energy activity through the powers of the CZMA. States can most

advantageously use the approval process by constructive comments to modify

projects rather than merely attempt to delay activity.

The Energy Amendments of 197626 have produced a number of changes in the

original CZMA. In terms of federal funding, the amendments have raised the

federal grant levels from two-thirds to eighty percent of the total costs of

developing and implementing the plan.27 The overall plan must now contain a

process for the protection of and access to public beaches and areas of envir-
28
onmental, historical, and cultural value.8 Another new requirement is a

planning process for studying and evaluating the ways to control shoreline
29
erosion.2 The final addition to 305 requires the inclusion of a process

for the planning of energy facilities likely to be located in, or significantly

affecting,the coastal zone, and a process for managing the impacts of such

facilities.3








There is but one major change in the consistency provision of 307,

which applies to any person submitting a plan for exploration, development or
31
production from any area which has been leased under the OCS Act. .If this

OCS activity affects the coastal zone, then the developer must describe, in

detail, each activity that will be undertaken and certify that all will comply

with the state plan. Once compliance is found, the developer is exempt from

seeking state approval each time an activity in the development requires a

federal license or permit. Therefore, a state is now prevented from using

its certification procedure to delay OCS activity because state approval is

now on a project to project basis rather than a permit to permit basis. A

state must therefore object at the time of initial certification or be fore-

closed to raise such issues in the future.

In order to have an effective mechanism for intergovernmental cooperation,

a state must now notify the local government whenever it plans the implementa-

tion of a management program decision that would conflict with a local zoning
32
ordinance, decision or action. The state must suspend action for 30 days

and consider any comments from local government before implementing its
33
decision.33 This would allow further control by local governments as to the

effects of the state plan on their areas.

Another important amendment in relation to local government is the crea-
34
tion of a new section entitled the coastal energy impact program.34 This program

speaks to the disruptive economic effect on local communities that offshore
35
energy development will have. The impact program will provide aid to affected

areas through grants computed under complicated formulas that use comparative

OCS activity to determine the funds awarded.3 The grants are to be used

first to retire state and local bonds guaranteed by the federal government and,

then, for the planning and carrying out of projects and programs made necessary








37
because of OCS activity.37 Section 308(c) provides funding for the study of

and the planning for consequences relating to new or expanding energy facil-

ities in, or which affect, the coastal zone. Further assistance is provided

for bond guarantees and loans to states and local governments to provide for
38
new or improved public facilities.38 When loans or bond guarantees are given

to areas which have difficulty in meeting those obligations because OCS acti-

vities have not increased the local tax base enough to raise sufficient funds,

39
I help is available in the form of grants and other assistance.39 Finally,

grants are available to states which have suffered, are suffering, or will

40
suffer an unavoidable loss of a valuable environmental or recreational resource.

This total package of financial aid is available to those states which have

approved management programs or which, in the opinion of the Secretary, are

i ; 41
making satisfactory progress towards developing an adequate management program.4

The state agency with 308 administrative powers is the Division of State
42 43
Planning (DSP).42 Applications have been made by the City of Jacksonville,4

the Broward County Port Authority,44 and others for the budget year of 1978-79.

Local governments should take advantage of this package by determining

the potential consequences developing from offshore energy activity, including

oil exploration, deepwater port siting, shipping, and offshore power production.

Once potential problems are recognized, the local governments can request

financial aid to study and plan accordingly for future development.


C. State Response

The Florida coastal zone management program is presently in a state of

disarray. The legislature has enacted the Florida Coastal Zone Management

Act of 1978,45 which is a grant of authority to DER as the "lead agency" to

compile a program based on existing statutes and rules.46 The DER is requested

to submit an application to NOAA in order to continue to receive administrative







funds under the CZMA of 1972.47 It was the intent of the legislature not to

amend existing statutes or provide any additional regulatory authority to any
48
governmental agency.4

DER has been placed in a very difficult position. The application for

federal approval under 306 of the CZMAwill contain program policies that

only reference existing statutes and existing implementing administrative
49
rules. DER will be forced to rely on the voluntary cooperation of other

state agencies such as the Division of State Planning and the Department of
f
Natural Resources, which have authority in areas relating to coastal zone

management. This will prevent the formation of a unified coastal zone man-

agement plan which should be administered by a single agency or council of

representative agency members.

The 1978 Act will have the DER exercising its authority in relation to

(1) permits for air discharges, water discharges, and dredge and fill acti-

vities;50 (2) permits for water treatment plans and projects;51 (3) electrical

power plant site certifications;52 and (4) development of the state water

plan.5

The Department of Natural Resources will continue to exercise its broad

authority relating to planning, management, regulatory and development acti-

vities to assist in coastal zone control. Specific DNR activities will in-

clude: (1) the establishment and issuance of variances to the coastal con-

struction setback line;54 (2) the management of the aquatic preserve system;55

(3) the management of the wilderness system;56 (4) the lease and sale of state

lands;57 (5) the development of a state land plan;58 (6) the development and

acquisition of park and recreation areas;59 (7) beach renourishment projects;60

and (8) the management of mineral and living marine resources.6

The Division of State Planning in the Department of Administration will

continue to act as the lead state planning agency. It will hopefully cooperate








in developing a unified coastal zone management policy by utilizing its

planning and management authorities relating to: (1) the development of the

regional impact process;2 (2) the A-95 review process; (3) the ten

year site plan requirements;64 (4) the review of the state budget;65 (5) the

state comprehensive plan;6 and (6) its authority under 308 CZMA Amendments

1976 to administer the Coastal Energy Impact Program.67

The most pervasive problem of coastal zone management at the state level

is the existing administrative system. There is at present no formalized

communication link between state agencies or levels of government. The fed-

eral Coastal Zone Management Act requires substantial cooperation on the part

of agencies in implementation of the state coastal zone management plan. The

Act and regulations emphasize a process of coastal zone management, that is,

the existence of conflict resolution mechanisms over the substantive authority

of the state to regulate in the area. One of the main requirements of the

CZMA is that the various agencies with primary roles in decision-making agree

to incorporate the policies of the management plan in their operations and

activities. There must be assurances that the coastal zone management plan

will be implemented by the major environmental agencies of the state. Under

Florida's 1978 Act, the agencies which have indirect coastal zone management

authority are able to maintain a position which can prevent the development

of a viable statewide coastal zone management plan.

Local governments have been requested to participate under Florida's Act

of 1978.68 The local governments affected, as defined by the Act, shall

develop a coastal zone protection element pursuant to Florida Statute 163.3177.

Financial and technical assistance will be made available to those local

governments affected. Under the Act of 1978, local participation in the

coastal zone management scheme is voluntary.70 The advantage for local gov-

ernments who participate would be financial assistance to plan for local







development. Compliance with the undefined state policy might also aid in

enforcement of local plans. The main disadvantage is the limited loss of

control to a state agency once participation occurs.

The activities section has emphasized local options based upon existing

state statutes and regulations. At the present time, existing law must serve

as the main source of local powers in dealing with problems stemming from

coastal zone development. The State of Florida has shifted from environmental

concerns to economic development. Given the 1978 Act, it is now up to local

governments to protect the limited resources of this state by adequately

planning for future consequences stemming from both offshore and onshore

development. Formal state and local planning mechanisms exist and must now

be utilized to control potentially harmful development.








FOOTNOTES


'U.S. v. California, 332 U.S. 19 (1947).
rulings which rejected the claims of Texas and
off their coasts. U.S. v. Texas, 339 U.S. 707
339 U.S. 699 (1950).


This decision was followed by
Louisiana to submerged lands
(1950); U.S. v. Louisiana,


243 U.S.C. 1301-1315.

343 U.S.C. 1301(a), 1311(a).

43 U.S.C. 1331(a), 1332(a).

In 1960, Florida and Texas were granted extended jurisdiction off the
Gulf Coast (to approximately nine miles) by reason of historical grants pre-
viously recognized by the United States. U.S. v. Louisiana, 363 U.S. 1 (1960),
reh. den., 364 U.S. 856 (1960); U.S. v. Florida, 363 U.S. 121 (1960). Two
1975 cases, U.S. v. Maine, 420 U.S. 515, and U.S. v. Florida, 420 U.S. 531,
reaffirmed the division of jurisdiction established in the Submerged Lands Act.

43 U.S.C. 1311(d).

43 U.S.C. 1314.

816 U.S.C. 1451.


9Pub. L. No. 97-583, 86 Stat. 1280, 305 (1972).
to 80% seen in Pub. L. No. 94-370.


This was later changed


10Pub. L. No. 92-583, 86 Sat. 1280, 304a (1972).

1Id., 305(b)(2).

12
Id., 305(b)(3).
13
Id., 305(b)(4).

S. Rep. No. 92-753, 92d Cong., 2d Sess. at 5 (1972).

5Pub. L. No. 92-583, 86 Stat. 1280, 305(c) (1972).

1Id., 306(c)(2)(B) and (c)(8).
17
Id., 306(a).
18"
Id.

19Id., 306(c).
20
Id., 306(e)(i) which states:

(A) State establishment of criteria and standards for local im-
plementation, subject to administrative review and enforcement of







compliance;
(B) Direct state land and water use planning and regulation; or
(C) State administrative review for consistency with the manage-
ment program of all development plans, projects, or land and water
use regulations. .proposed by any state or local authority or
private developer, with power to approve or disapprove after public
notice and on opportunity for hearings.

21Id., 306(e)(2).

22Id., 307(c)(3).
23
Senate Comm. on Commerce, 92d Cong., 2d Sess., Rep. 92-753, 92 U.S.
Cong. and Admin. News, Vol. 3, pp. 4792, 4793 (1976).
24
2Rubin, The Role of the Coastal Zone Management Act of 1972 in the Devel-
opment of Oil and Gas From the Outer Continental Shelf, 9 Natural Resources
Lawyer, pp. 399, 407.
25
Pub. L. No. 92-583, 86 Stat. 1280, 307(e) (1972).
26
Pub. L. No. 94-370, 86 Stat. 1280.

27Pub. L. No. 94-370, 305(c); Cong. Rec. H6687 (1976).

2d., 305(a)(7).

2d., 305(a)(9).

3d., 305(a)(8).

1d., 307(c)(3)(B).
32d. 306(c)(2)(B).
3d., 306(c)(2)(B).


3d., 308.
35
3Senate Comm. on Commerce, 94th Cong., 2d Sess., Report 94-277, 94 U.S. Code
Cong. & Admin. News, Vol. 3, p. 1805 (1976).
36
Pub. L. No. 94-370, 308(b).

37Cong. Rec. H6688, 308(a)(1)(A), 308(b)(4), 308(d)(2) (1976).
38
38Id., 307(d)(l), 307(d)(2).

39Id., 308(d)(3).
40
Id., 308(d)(4).
41
Id., 308(g)(l). Florida falls in the latter category.

42Fla. Stat. Ch. 23 (1977).











43Interview with Wayne Voight, Assistant Director, Division of State
Planning of Florida.

441d.
Id.

4Fla. Laws, Ch. 78-287 (1978).

Id., Sec. 7.

4716 U.S.C. 1451.
48
48Fla. Laws, Ch. 78-287 (1978).

49Id.
50Fla. Stat. Chs. 253, 373, 403 (1977).
5Fla. Stat. Ch. 403 (1977).

52Fla. Stat. Chs. 403, 506 (1977).

5Fla. Stat. Ch. 343 (1977).

54Fla. Stat. Ch. 161 (1977).


55Fla. Stat. Ch. 258 (1977).
563d

57Fla. Stat. Ch. 253 (1977).

58id
59Fla. Stat. Ch. 345 (1977).
Fla. Stat. Ch. 161 (1977).

6Fla. Stat. Ch. 258 (1977).

62Fla. Stat. Ch. 258 (1977).
56Id.













6Fla. Stat. Ch. 23 (1977).

64Id.

65id

66id

671d

6Fla. Laws, Ch. 78-287 (1978).
Fla. Laws, Ch. 78-287 (1978).







69id.

70Id.









II. STATE COMPREHENSIVE PLANNING

The main statewide planning authority in Florida is found in the Division

of State Planning (DSP) of the Department of Administration.1 The Division

administers all major state planning programs, as well as exercising more

direct state control regarding developments of regional impact and areas of
2
critical state concern. By its very nature and the authority granted to it

under the statutes, the Division must interact with other state agencies and

other levels of government in the administration of its duties.

The DSP has five major duties: (1) to prepare and revise a state compre-

hensive plan; (2) to coordinate planning among federal, state, and regional

governments; (3) to coordinate all state agency planning and programming, in-

cluding oceanic and water resources, pollution and environmental health, and

fish and wildlife; (4) to serve as the state planning clearinghouse and to

designate regional clearinghouses; and (5) to make basic planning data avail-

able to all public and private agencies concerned with development within the
3
state. As part of the interagency comprehensive planning effort at the state

level, each state agency is required to designate a person to serve as. a
4
planning officer for that agency. These planning officers are responsible

for the coordination of planning functions with the DSP and with other state
5
agencies.


A. State Comprehensive Plan

The state comprehensive planning effort is a continuing process. The

DSP must prepare annual development programs to cover the forthcoming six

years. The comprehensive plan must be submitted to and approved by the Gov-

ernor. Once approved, it is to be sent to both houses of the legislature for

consideration at the next session. Any part of the plan not authorized by

law must gain legislative approval. Subsequent to this approval, state depart-









II. STATE COMPREHENSIVE PLANNING

The main statewide planning authority in Florida is found in the Division

of State Planning (DSP) of the Department of Administration.1 The Division

administers all major state planning programs, as well as exercising more

direct state control regarding developments of regional impact and areas of
2
critical state concern. By its very nature and the authority granted to it

under the statutes, the Division must interact with other state agencies and

other levels of government in the administration of its duties.

The DSP has five major duties: (1) to prepare and revise a state compre-

hensive plan; (2) to coordinate planning among federal, state, and regional

governments; (3) to coordinate all state agency planning and programming, in-

cluding oceanic and water resources, pollution and environmental health, and

fish and wildlife; (4) to serve as the state planning clearinghouse and to

designate regional clearinghouses; and (5) to make basic planning data avail-

able to all public and private agencies concerned with development within the
3
state. As part of the interagency comprehensive planning effort at the state

level, each state agency is required to designate a person to serve as. a
4
planning officer for that agency. These planning officers are responsible

for the coordination of planning functions with the DSP and with other state
5
agencies.


A. State Comprehensive Plan

The state comprehensive planning effort is a continuing process. The

DSP must prepare annual development programs to cover the forthcoming six

years. The comprehensive plan must be submitted to and approved by the Gov-

ernor. Once approved, it is to be sent to both houses of the legislature for

consideration at the next session. Any part of the plan not authorized by

law must gain legislative approval. Subsequent to this approval, state depart-








ment or agency budgets must be prepared and entered based upon and consistent

with the comprehensive plan.8

At present, there are many conflicts (later discussed) in existing state

statutes which cause confusion as to the practical effects of the state

comprehensive plan on coastal zone management. This confusion cannot begin

to be resolved until a process of formal communication is developed between

competing state agencies.

As a whole, Part I of Chapter 23 establishes the framework for DSP

development, revision, and implementation of the state comprehensive plan.

Although Chapter 23 does not specifically mandate consideration of the problems

of the coastal zone, it is clear that the environmental element of the state

comprehensive plan must consider coastal zone management problems.


B. Interstate Cooperation

Part VI of Chapter 23 is intended to establish a system of cooperation

among seventeen states within the southeastern United States in order to

assist the states in meeting their own problems "by enhancing their abilities

to recognize and analyze regional opportunities and take account of regional

influences in planning andimplementing their public policies."9 The purposes

of the agreement are to provide10 (1) improved facilities and procedures for

study, analysis, and planning of governmental policies, programs, and activities

of regional significance; (2) assistance in the prevention of interstate

conflicts and the promotion of regional cooperation; (3) mechanisms for the

coordination of state and local interest on a regional basis; (4) an agency
11
to assist the state in the foregoing.

The Act establishes the Southern Growth Policies Board consisting of the

Governor, two members of the state legislature, and two state citizens appointed

by the Governor.12 The Board has the power to contract with public or private








agencies for investigations and research,13 to prepare comprehensive land use

plans in cooperation with other states,14 and to participate and cooperate

with the federal government in joint planning undertakings.15 The main signi-

ficance of this part of Chapter 23 is that it recognizes the interstate and

regional nature of many development decisions and establishes a structure by

which Florida may participate and cooperate with other states and the federal

government in planning for these regional projects. This can be useful in

the planning and development of deep water ports which can have a regional

impact if located near the border of two states or in an adjoining area such

as the Gulf of Mexico. As of yet, no results have been produced through acti-

vities of the Board in relation to coastal zone management. The Board's acti-

vities have so far dealt with general regional planning.

Chapter 23 preserves in local government the power to adopt their own

comprehensive plan with the DSP acting in a supervisory capacity coordinating

local plans with a unified state comprehensive plan. The DSP will only act

directly where local governments have not exercised their powers to control

future development under requirements set forth in Chapter 163.


C. Local Comprehensive Planning

The DSP is the state level administering agency for the local Government

Comprehensive Planning Act.16 Part II of the Act provides general enabling

legislation for adoption and enforcement of zoning regulations, subdivision

regulations, and building codes by counties and incorporated municipalities.17

It sets forth minimum requirements for local exercise of these powers, but

local governments may decide whether to exercise the authorized powers. A

local government may establish a commission charged with the development of

a comprehensive plan, which is to become effective upon adoption by the governing

body.19 The comprehensive plan mus include a land use element and may include
body. The comprehensive plan must include a land use element and may include







transportation, community facilities, long range financial improvement elements,
20
and other elements deemed necessary.

By giving local governments more power and responsibility, the Act is

intended to encourage rational development of land and the protection of
21
natural resources. The Act requires all counties and municipalities in the
22
state to prepare and adopt comprehensive plans by July 1, 1979. It is rela-

tively flexible in allowing unincorporated land outside a municipality to be

included in a comprehensive plan and in providing that combinations of muni-
23
cipalities and counties may jointly establish such plans.23 A procedure for

the appointment of a local planning agency to prepare the plan is established.24

The required elements and optional elements to be included in the compre-

hensive plan are found in the body of the Act. The plan must contain several

specific elements including a future land use plan, a traffic circulation

element, a water and sewer element, a recreation and open space element, a

housing element, and a "conservation element for the conservation, development,

utilization and protection of natural resources in the area."25

The Act requires a coastal zone protection element for all local govern-

ments lying within the coastal zone, as defined under the Federal Coastal

Zone Management Act.26 The coastal zone element must be submitted to the

Division of Resource Management of DNR for comment at least 60 days before its

local adoption.27

Other regional elements of the comprehensive plan are an intergovernmental

coordination element28 and a utility element.29 The Act also provides for a

number of optional elements including a historical or scenic preservation

element setting out plans and programs for those structures or lands in the
30
area having historical or scenic significance. This latter element could

be coordinated with the natural resources and coastal zone elements. It is

obvious that a significant degree of planning for and protection of the coastal









zone could be accomplished through the local planning process.

31
The Act establishes procedures for public participation31 and for final
32
adoption of the plan.32 At least 60 days before local adoption, the plan

must be submitted to the DSP and appropriate regional planning councils for
33
written comment. The DSP will then specify any objections and make recom-

mendations for modification; however, this must be done primarily in the con-

text of the relationship and effect of the local plan to the state comprehen-
34
sive plan.34 The local governing body must then reply to objections within

four weeks and may not take any action to adopt the plan until two weeks after

the date of the letter of reply.35

Once the comprehensive plan has been adopted, all local land development

decisions must be consistent with it,36 except to the extent that the plan

may be amended.37 Coastal zone management policies could be enforced once

voluntary compliance is found by local governments if the coastal protection

element is made an integral part of the state comprehensive plan.

As mentioned above, Part II of Chapter 163 also contains zoning, subdiv-

ision regulation, and building code enabling provisions. Preparation and

adoption of a comprehensive plan empowers the governing body to enact and en-

force a zoning ordinance after public hearing with due public notice. The

governing body is required to divide the entire area into districts and to

regulate the following elements: height, size, bulk, location, construction,

repair, alteration and use of structures; use of land and water; size of yards,

percentage occupation of lot; density of population; conditions for the con-

tinuance of non-conforming uses; performance standards for use of property
38
and location of structures. Procedures are set forth for establishing dis-
39 40
trict boundaries,39 adopting regulations,40 and supplementing or amending the

zoning ordinance.41







The enabling provision of Chapter 163 allows local government to adopt

growth control regulation. The Local Government Comprehensive Planning Act

requires local governments to anticipate potential onshore impacts of offshore

energy production and begin to plan for them. Through the elements of the

plan, local government can either encourage or discourage potential onshore

activity.


D. Municipal Subdivisions

Municipalities are authorized to regulate the subdivision of lands.42

In areas where a planning commission is established, the governing body may

designate the commission as an accredited representative for approving sub-
43
divisions, plans, and plats.43 The commission's approval of the plans or

plats does not constitute an acceptance of the dedication of any street or

other ground. The authority to accept dedications of land for whatever pur-
44
pose is exercised exclusively by the governing body. In addition, the gov-

erning body is authorized to order a reversion of acreage of all or any part
45
of a subdivision within its jurisdiction.4

The counties and incorporated municipalities are authorized to adopt and

enforce building codes after a public hearing with due notice.46 The adoption

and implementation of building codes has traditionally been a local government

function and the only significant state legislation in this area does not

alter this pattern. Chapter 553 provides for statewide minimum standards for
47 48 49 50
plumbing,47 electrical installation,48 glass,9 and factory-built housing.5

Another part requires certain minimum specifications to accommodate handicapped
51
persons. Local governments have clear authority to require more stringent
52
standards than those adopted under Chapter 553,52 including special building

standards for coastal areas.








E. Regional Planning Councils

Regional Planning Councils (RPC's) are authorized to act in an advisory

capacity to the constituent local governments in regional, metropolitan,

county and municipal planning matters involving land use, water resources,

highways, recreational areas, sewage and garbage disposal, and other matters

concerning the acquisition, planning, construction, development, financing,

control, use, improvement or disposition of land, buildings, structures,

53
facilities, goods or services in the interest of the public. An RPC consists

of two representatives from each participating local government appointed

by the legislative body of that government.54 RPC's are authorized to employ

personnel, consultants, and technical and professional assistants as are

necessary to perform its official duties.55 Although RPC's are empowered only

to advise, they play an important role by coordinating state and local efforts,

and in providing an effective communication link between the DSP and local

authorities.


F. Environmental Land and Water Management

The most direct authority exercised by the DSP over the land development

decision-making process in the state was established by the Environmental Land

and Water Management Act of 1972.56 The purpose of the chapter is to guide

the growth and development and facilitate orderly development which will pre-

serve the quality of life of the state's residents. The state must establish

land and water management policies to guide and coordinate local decisions

relating to growth and development.57 These policies are to be, where possible,

implemented by local governments through existing processes.5

59
Florida provisions based upon the ALI Model Land Development Code5 pro-

vide a three-step process for state participation in the control of areas of

critical concern.60 Designation of an area includes a recommendation by state
critical concern. Designation of an area includes a recommendation by state








E. Regional Planning Councils

Regional Planning Councils (RPC's) are authorized to act in an advisory

capacity to the constituent local governments in regional, metropolitan,

county and municipal planning matters involving land use, water resources,

highways, recreational areas, sewage and garbage disposal, and other matters

concerning the acquisition, planning, construction, development, financing,

control, use, improvement or disposition of land, buildings, structures,

53
facilities, goods or services in the interest of the public. An RPC consists

of two representatives from each participating local government appointed

by the legislative body of that government.54 RPC's are authorized to employ

personnel, consultants, and technical and professional assistants as are

necessary to perform its official duties.55 Although RPC's are empowered only

to advise, they play an important role by coordinating state and local efforts,

and in providing an effective communication link between the DSP and local

authorities.


F. Environmental Land and Water Management

The most direct authority exercised by the DSP over the land development

decision-making process in the state was established by the Environmental Land

and Water Management Act of 1972.56 The purpose of the chapter is to guide

the growth and development and facilitate orderly development which will pre-

serve the quality of life of the state's residents. The state must establish

land and water management policies to guide and coordinate local decisions

relating to growth and development.57 These policies are to be, where possible,

implemented by local governments through existing processes.5

59
Florida provisions based upon the ALI Model Land Development Code5 pro-

vide a three-step process for state participation in the control of areas of

critical concern.60 Designation of an area includes a recommendation by state
critical concern. Designation of an area includes a recommendation by state








or local agencies subject to approval by the state, and implementation at the

local level by existing governmental bodies.61 Three types of areas may be

designated as "having a significant impact upon environmental, historical,

natural, or archaeological resources of regional or statewide importance."62

Designation is subject to several limitations: no more than five percent of

the area of the state may be designated as a critical area at any one time;63

such designations must be mandated bya demonstrated need and must include

an explanation of the reasons for and dangers and advantages of control under
64
the Act; and designation must delineate the principles of development or

the designated area.6

Under Chapter 380, if an area is designated on Area of Critical State

Concern, development regulations primarily designed to protect the area will

hinder development so as to discourage offshore energy exploration and devel-

opment. The DRI process insures a local government enough information to

intelligently decide whether to sanction such development and under what con-

ditions. The involvement of the state and regional planning agencies should

insure that regional and statewide concerns are properly included in the

local government's evaluation of the proposal.

The development of regional impact (DRI) is a development which, because

of its character, magnitude or location, would have a substantial effect upon

the health, safety, or welfare of citizens of more than one county. Under the

rules of the Department of Administration, certain developments are considered

DRI's by their very nature, including electrical generating facilities and

transmission lines, petroleum storage facilities, and port facilities.6 The

division of authority under the DRI process is similar to that of the areas

of critical state concern. The DSP has adopted specific guidelines and stan-

dards for the designation of DRI's. Each regional planning agency may








recommend to the DSP types of developments for designation as DRI's. The

regional planning agency must solicit suggestions from the local governments

within its jurisdiction regarding DRI's to be recommended.6

Where a developer wishes to undertake a DRI within a jurisdiction, the

developer must file an application for development approval with the appropriate

local government.69 The local government must give notice and hold a hearing

on the application in the same manner as for rezoning. The notice must be

given to the state DSP, to the applicable regional planning agency, and to

other persons designated by the DSP as entitled to receive such notice. The

regional planning agency must determine whether the application for development

approval contains sufficient information for the regional planning agency to

discharge its responsibilities. If the application is insufficient, the agency

must provide the local government and the applicant with a statement listing

the additional information needs of the agency.70 The regional planning agency

must also prepare and submit to the local government a report and recommenda-

tions on the regional impact of the proposed development.7 The application

for development will be approved, denied or approved subject to conditions,

restrictions, or limitations, depending on the local government determination

of whether the development unreasonably interferes with the achievement of

the objectives of an adopted state land development plan applicable to the area;

development is consistent with the local land development regulations; and

the development is consistent with the report and recommendations of the

regional planning agency. Thus, under the DRI approval process, local govern-

ments retain the greatest measure of authority for review and approval.72







FOOTNOTES


1Fla. Stat. 23.012 (1977).

2Fla. Stat. Chs. 23, 163, 380 (1978).

3Fla. Stat. 23.12 (1977).

4Fla. Stat. 23.0113 (1977).

5Id.

6Fla. Stat. 23.014(1) (1977). The annual programs must contain:
(a) the current posture of state development analyzing long range needs and
opportunities in terms of present factors and activities; (b) specific policies
to be undertaken with regard to economic, social, natural resource, transpor-
tation, local and regional development; (c) programs and quantified annual
accomplishments to be achieved by each program over the next six years, and
methods and requirements for effectuating and implementing the program including
resource, manpower, fiscal, legislative or administrative requirements.

7Fla. Stat. 23.013(1) (1977).

8Fla. Stat. 23.013(3) (1977).

9Fla. Stat. 23.140 (1977).

10Fla. Stat. 23.140; Art. I (1977).
11Id.

12Id. at Art. II.
13Id. at Art. IV.


14Id. at Art. X.

15Id. at Art. XIII.

16Fla. Stat. 23.0112 (1977).

17Fla. Stat. 163.160 (1977).

18Fla. Stat. 163.185(2) (1977).

19Fla. Stat. 163.190(3) (1977).

20Fla. Stat. 163.190(1) (1977).

21Fla. Stat. 163.3161 (1977).

22Fla. Stat. 163.3167 (1977).

23Fla. Stat. 163.3171 (1977).








24Fla. Stat. 163.3174 (1977).
2Fla. Stat. 163.3177(6)(d) (1977).


2Fla. Stat. 163.3177(6)(g) (1977). This element must include surveys
of existing vegetation types which need be preserved for natural control of
dune and beach erosion and surveys of traditional patterns of public access
and use of beach resources, setting out the policies for: (1) maintenance,
restoration, and enhancement of the overall quality of the coastal zone envir-
onment, including but not limited to, its amenities and aesthetic values;
(2) continued existence of optimum populations of all species of wildlife;
(3) the orderly and balanced utilization and preservation, consistent with
sound conservation principles, of all living and non-living coastal zone re-
sources; (4) avoidance of irreversible and irretrievable commitments of
coastal zone resources; (5) ecological planning principles and assumptions to
be used in the determination of suitability and extent of permitted development;
(6) proposed management and regulatory techniques.
27
Id.
28
Fla. Stat. 163.3177(6)(h) (1977).
29Fla. Stat. 163.177()(i) (1977).
3Fla. Stat. 163.3177(6)(i) (1977).



32Fla. Stat. 163.3184 (1977).
3Fla. Stat. 163.3184()(a) (1977).
31



Fla. Stat. 163.3184(2) (1977).


352d.
3Fla. Stat. 163.3184(1) (1977).
33




3Fla. Stat. 163.3184( (1977).

38Fla. Stat. 163.205() (1977). See Gen 074-242 (1974).

3Fla. Stat. 163.3104( (1977).
40Id.


4Fla. Stat. 163.3187 (1977). See, Metropolitan Dade County v.cGeary,




291 So.2d 28 (3rd D.C.A. Fla. 1974); Rural New Towns, Inc. v. Palm Beach
County, 315 So.2d 478 (4th D.C.A. Fla. 1977).
4Fla. Stat. 163.205(1) (1977). See Op. Atty. Gen. 074-242 (1974).
43Fla. Stat. 163.265() (1977).
Fla. Stat. 9163.210 (1977).
40
Id.
41
Fla. Stat. 163.215 (1977). See, Metropolitan Dade County v. McGeary,
291 So.2d 28 (3rd D.C.A. Fla. 1974); Rural New Towns, Inc. v. Palm Beach
County, 315 So.2d 478 (4th D.C.A. Fla. 1977).

"Fla. Stat. 163.260 (1977). See Op. Atty. Gen. 074-242 (1974).

Fla. Stat. 163.265(1) (1977).






44Fla. Stat. 163.2653) (1977).
45Fla. Stat. 163.280 (1977).
4Fla. Stat. 163.280 (1977).
46a. Stat. 553.01 (197
4Fla. Stat. 55163.25 (1977).
47Fla. Stat. 553.24 (197
5Fla. Stat. 553.01 (1977).
48a. Sta. 553.45 (1977).
5Fla. Stat. 553.79(4) (1977).
49



Fla. Stat. 160.02(10) (1977).

50id
5Fla. Stat. 160.02(4) (1977).

5Fla. Stat. 553.45 380 (1977).
Fla. Stat. 553.79(4) (1977).

Fla. Stat. 160.02(10) (1977).






58Id







59AAmerican Law Institute, Model Land Development Code, ten. Draft I
(Philadelphia, Pa. 1968).
6Fla. Stat. 38160.02(4) (1977).








61Id.

62id .
56








Fla. Stat. Ch. 380.05()(a) (1977).

6Fla. Stat. 380.021)(b) (1977). Much of the following analysis and text
was taken from the recent work by The Florida Law Revision Commission, Review
of Existing State Land Use Regulation: An Overview, Fred Buggett, reporter
(Feb. 20, 1976).-----------~ -
58






Id.
American Law Institute, Model Land Development Code, ten. Draft I






(Philadelphia, Pa. 1968).Code 22F-2 (1977).







67Fla. Admin. Code 5-22F-1, 2 (1977).
6Fla. Stat. 380.06(3) (1977).
64

6TId.



Fla. Admin. Code 5-22F-1. 2 (1977).

Fla. Stat. 380.06(3) (1977).








69Fla. Stat. 380.06(4) (1977).
70Fla. Stat. 380.06(7) (1977).

71Fla. Stat. 380.06(8) (1977).

7Fla. Stat. 380.06(11) (1977).
Fla. Stat. 9380.06(11) (1977).








III. ENVIRONMENTAL CONTROL

A. Federal Law

Federal environmental quality legislation interrelates with virtually

every area of coastal management and planning. The Coastal Zone Management

Act makes environmental considerations a prime factor by mandating that all

coastal zone management plans and activities under the Act comply specifically

with the Federal Water Pollution Control Act (FWPCA) and the Clean Air Act.

These two Acts, as well as the National Environmental Policy Act (NEPA), are

the main programs reflecting federal environmental regulation.


1. National Environmental Policy Act

NEPA requires preparation of a detailed environmental impact statement

whenever major federal action is proposed which will significantly affect the

quality of the human environment. Under this provision, two questions arise:

whether there is federal action and whether the action significantly affects

the environment. It is clear that federal action is involved when the pro-
4
ject is directly undertaken by the federal government. It is also likely that

sufficient federal action exists where state, local, or private parties act,

subject to federal approval. For example, failure of the Corps of Engineers

to evaluate the environmental impact of its permit to a power company for con-

struction of a water intake and discharge facility was held to render the

permit invalid.6 However, in another case, no environmental impact statement

was required where marinas and piers were being constructed in ocean and sound

areas in North Carolina, with ninety percent construction above the mean high

water line, because no federal funds were involved and the only federal in-

volvement was review of the application for permit by the Corps of Engineers.

Note that major federal action does exist where federal money is involved, as

in interstate highway construction.








III. ENVIRONMENTAL CONTROL

A. Federal Law

Federal environmental quality legislation interrelates with virtually

every area of coastal management and planning. The Coastal Zone Management

Act makes environmental considerations a prime factor by mandating that all

coastal zone management plans and activities under the Act comply specifically

with the Federal Water Pollution Control Act (FWPCA) and the Clean Air Act.

These two Acts, as well as the National Environmental Policy Act (NEPA), are

the main programs reflecting federal environmental regulation.


1. National Environmental Policy Act

NEPA requires preparation of a detailed environmental impact statement

whenever major federal action is proposed which will significantly affect the

quality of the human environment. Under this provision, two questions arise:

whether there is federal action and whether the action significantly affects

the environment. It is clear that federal action is involved when the pro-
4
ject is directly undertaken by the federal government. It is also likely that

sufficient federal action exists where state, local, or private parties act,

subject to federal approval. For example, failure of the Corps of Engineers

to evaluate the environmental impact of its permit to a power company for con-

struction of a water intake and discharge facility was held to render the

permit invalid.6 However, in another case, no environmental impact statement

was required where marinas and piers were being constructed in ocean and sound

areas in North Carolina, with ninety percent construction above the mean high

water line, because no federal funds were involved and the only federal in-

volvement was review of the application for permit by the Corps of Engineers.

Note that major federal action does exist where federal money is involved, as

in interstate highway construction.








Offshore energy exploration and production are covered by NEPA. In a

case concerning leasing activities off the California coast, the court of

appeals held that leasing decisions by the Secretary of the Interior must

include environmental considerations as guided by NEPA provisions.8 With re-

spect to offshore power production, the size, complexity, and scope will cer-

tainly require the filing of an environmental impact statement. In one situa-

tion, permits issued without such a statement have been rendered invalid.9

Deep water ports are also of such magnitude that they would also require an

environmental impact statement under NEPA.

NEPA requires the acting federal agencies to consult with other appropriate

federal agencies, as well as state and local officials, and to receive public

comment. For example, in a case dealing with proposed offshore lease sales

in the Atlantic, the Court found that sections of NEPA had not been complied

with because no federal, state, or local agencies had been asked to comment

10
or review the proposals. Yet a 1975 decision by the United States Court of

Appeals for the Fifth Circuit rules that an environmental impact statement,

filed by the Department of the Interior, was sufficient even though many other

groups such as state and local agencies objected to it.11 The environmental

impact statement plays a viable role in that it assures a detailed discussion

of all issues relating to protection of the environmental quality. Local

governments have been given an opportunity to comment on any proposed major

federal action and can further use this procedure as a delaying tool allowing

all issues to be examined adequately.

Preparation of environmental impact statements is covered by Environmental

Protection Agency (EPA) regulations.12 These regulations require that envir-

onmental impact statements be written in terms for "laymen understanding and
,,13
response. Another important requirement in the EPA regulations is that







particular attention be paid to statements showing impact on the environment

of the coastal zone.


2. Federal Water Pollution Control Act

The Federal Water Pollution Control Act (FWPCA) is the latest revision

of prior legislation on water pollution policy.14 The Act has several goals,

including elimination of discharge of pollutants in navigable waters by 1985,

prohibition of discharge of toxic pollutants in toxic amounts, provision of

financial assistance to construct publicly owned waste treatment plants,

development and implementation of area-wide waste treatment management planning

processes, and development of technology necessary to eliminate the discharge

of pollutants into navigable waters through major research and demonstration

efforts.15

The structure of the Act is based on a system of state water quality

standards which are approved by the Environmental Protection Agency (EPA).

The intent of the FWPCA is to place the primary responsibility for environ-

mental protection in the state and local governments, which have authority to

adopt and enforce protection statutes.16 In one case, the United States

Supreme Court held that by enacting the FWPCA, Congress did not preempt the

field under the commerce clause. The Court upheld the constitutionality of

Florida's Oil Spill Law which at the time imposed standards and obligations

which were more stringent than those required under the federal enactment.17

The main question arising under the FWPCA is whether the federally adopted

state water quality standards will apply to structures and activities located

on the continental shelf outside of state boundaries. Under the Outer Conti-

nental Shelf Lands Act, state law applies to these areas as representing
18
federal law. EPA regulations are applicable to all interstate waters and

require state certification of activities requiring a federal permit to ensure








19
that water quality standards are being met.9 These provisions reflect the

position that state standards do apply to continental shelf activities outside

the state boundaries. The overall impact of the FWPCA is to provide for state

and local control in implementing regulations concerning water quality in
20
navigable waters.2


3. Clean Air Act

The Clean Air Act was substantially amended in 1970.21 From legislation

which dealt with federal assistance to state and local governments, the 1970

amendments reflected the federal government's conclusion that air quality was

22
a national problem for which the federal government had primary responsibility.2

The Clean Air Act will be critically important in state coastal zone management

development because of a direct mandate of the Coastal Zone Management Act

23
for specific compliance with the particulars of the Clean Air Act. In

addition, the breadth of the Act that controls ambient air standards in auto

emissions applies without question to activities in the coastal zone, there

being no such limitation as in the navigable water definitions under FWPCA.

The Secretary of HEW is authorized to make grants to inter-municipal or

interstate air pollution control agencies for developing or improving regional

air pollution programs. Authority is also established in governing bodies of

municipalities to enforce measures against air pollution after preliminary

finding of violations are made and state approval for action is obtained.24

This program permits local governments to plan for possible air pollution

from onshore development associated with offshore development.


B. State Law

1. Department of Environmental Regulation

The primary state agency vested with the responsibility and authority to

protect the environment is the Department of Environmental Regulation (DER).







The DER was created and its authority granted by the Florida Environmental
25
Reorganization Act of 1975.2 DER is intended to be the principal permitting
26
agency in the administration of the state's environmental laws. Several

departments existing before reorganization have been consolidated in order to
27
carry out these functions.27 The major administrative officer of DER is the

secretary, who is appointed by the Governor with confirmation by the Senate.

Since the secretary is the legal head of the agency, his decisions are con-

sidered to be final agency action.28 Depending on the statutory authority,

these decisions are appealable to the Environmental Regulation Commission

(ERC) and/or to the Governor and Cabinet.29 The Commission is composed of

seven citizens of the state appointed by the Governor.30

The standard setting authority of the DER relating to air and water quality,
31
noise and solid waste management is vested in the ERC.31 The ERC is required

to conduct a study of the economic and environmental impact of any proposed

or existing standards which would be or are more stringent than ones which
32
have been established by federal agencies pursuant to federal law.32 The ERC
33
initially adopts the standards,33 with final decision made by the Governor

and the Cabinet, who accept, reject, modify, or remand the standards for further
34
proceedings.34 The ERC has final approval on applications for and disbursements
35
of federal grants.35 It also acts in an adjudicatory capacity for final

agency actions.

The Division of Environmental Programs in DER administers, coordinates,

and supervises programs relating to planning, grants, air quality, and water

quality and quantity, noise, and solid waste management.36 The Division of

Environmental Permitting processes applications for power plant site certifi-

cates. The Division is required to establish uniform procedures and forms

for the orderly determination of decisions relating to permits, licenses,








38
certificates, and exemptions.3 The Division is authorized to supervise and

direct all district operations and to provide the necessary legal technical

support to carry out the functions of the DER.3

The Secretary of the DER is required to establish environmental districts

which are to correspond with the state's existing water management districts

40
to the maximum extent possible.40 Each environmental district has a manager

appointed by the Secretary of DER.41 Under the supervision of the Division

of Environmental Permitting, all field services and inspections required in

support of the decisions of the DER relating to the issuance of permits,

licenses, certificates or exemptions are to be accomplished, to.the maximum

42
extent possible, at the environmental district level.42 The processing of

all applications is also to be accomplished by the environmental district

unless specifically assigned to the Division or assigned by interagency
43
agreement.43 However, where it is determined that a water management district

has the financial and technical capacity to carry out the water quality func-

tions of the DER, those powers, duties and functions may be contracted or

delegated to the water management district.44

The water management districts were established under the Florida Water
45
Resource Act of 197245 and given the power to accomplish the conservation,

protection, management and control of the waters of the state. The duties

and functions of the DNR relating to water management set forth in the 1972

46
Act were transferred to DER. The DER is now responsible for the state water

use plan which considers the control of the state's waters and the preserva-

tion and enhancement of the water quality of the state. The DER vests power

in the governing boards of the water management districts, including admini-

stration, the determination, establishment, and control of the level of much

of the state's waters, and the regulation of discharges into and withdrawals

47
from these waters. Generally, the DER has delegated a substantial portion







of environmental decision-making to the district level which allows for greater

local control.

The counties and municipalities are authorized to establish and administer

local pollution control programs. They must, however, comply with the Florida
48
Air and Water Pollution Control Act. The local programs must be approved

by the DER as adequate to meet the requirements of the Act and must provide

by ordinance, regulation, or local law, requirements compatible with, or
49
stricter than those imposed by the DER.49 The DER has exclusive permit author-

ity, but may, if it finds it necessary to do so, delegate this authority to

the local governments.

The DER may find that certain pollution problems can be handled effec-

tively by only a regional area and that local control is unacceptable. If

DER has reason to believe that the local program is inadequate, it may conduct

a hearing on the matter. If the program is found inadequate, DER can require

that necessary corrective measures be taken within a reasonable time. If the

county or municipality fails to act, DER's program supersedes that of the

local government unit.51

This regulatory system provides direct state control over air and water

pollution programs of the Federal Water Pollution Control Act and indirect

control by the DER, by which it reviews and approves local plans and establishes

standards and criteria with which local programs must comply.

DER issues permits relating to environmental standards. Commitments of

sovereign lands for limited or restricted use, dredging to fill purchased

sovereign land, extraction of fill, dredging trenches for purposes of instal-

lation of pipelines and utilities, rights of way for commerce and navigation

projects, dredging for navigation and other purposes, permits required for

piers and related types of structures, and permits for artificial reefs.52









Consequently, all offshore development will require some form of permit from

the DER.


2. Department of Natural Resources

Another state department which has powers relating to environmental land

and water management is the Department of Natural Resources (DNR). The powers

of the trustees of the Internal Improvement Trust Fund relative to resources,

including ownership of the submerged lands of the state were merged into the

DNR through reorganization.53 Thus sales and leasing of sovereign lands of

the state are managed by the DNR. The DNR also promulgates regulations con-

trolling the leases for oil and gas exploration. Ownership of state lands

is vested in the Governor and Cabinet who have the authority to hear and

decide appeals of DNR decisions.54 While the DNR has authority to dispose

of state lands, it must, prior to the transfer, make a determination as to

the environmental impact of such a transfer.55 After applications are received

and proper notice is given, public hearings must be held.

The DNR has further authority relating to the placing or removal of on-

shore or offshore installations.6 Requirements for permitting of work and

activities including the filling of submerged lands are promulgated by the

DNR. Private developers must obtain rights of way for any cables or pipelines

which would be used in conjunction with any installation. Even after purchase

of submerged lands, dredging activities including trench formation for instal-

lation of public utilities, pipelines, and similar uses, as well as other con-

struction in submerged lands areas require a permit from the DER. The regu-

lations of DNR and DER cover every aspect of work connected with the placing

and development of installations in the navigable waters of the state, as well

as installations in and under the submerged lands of the state.







The Division of Resource Management in DNR has control over oil and gas

production for the purpose of securing efficient development, avoiding of

waste, minimizing the impact on natural resources of the state, and preventing

adverse environmental impacts from development.57 This includes the fixing

of locations of wells on the surface as well as regulation of activities such

as equipping, drilling, operating, producing and storage of oil and gas.58

The DNR has a further responsibility to preserve and protect the beaches

59
and shores of the state. The Beach and Shore Preservation Act,59 is concerned

with regulation of construction, reconstruction, and other physical activities

in coastal areas which will have an adverse environmental effect on the beaches

and shores. The Act establishes beach and shores preservation districts with

the DNR delegating authority to the local Boards of County Commissioners who

serve as the Beach and Shore Preservation Council. In this capacity, the

Board of Commissioners is given broad regulatory power over all physical work

or activity along the county shoreline which is likely to have a material effect

on coastal conditions or natural shore processes. County commissioners can

issue bonds to obtain funds on a local level to meet the cost of their beach

and shore preservation programs.6






FOOTNOTES


16 U.S.C. 1456.

42 U.S.C. 4231; 37 Fed. Reg. 2525(4)(a).

3Id.

442 U.S.C. 4231.

537 Fed. Reg. 2525(11)(c).

Citizens for Clean Air, Inc. v. Corps of Engineers, 349 F. Supp. 696
(N.Y. 1972).

Ruckner v. Wills, 484 F.2d 158 (1973).
8
Union Oil Co. of California v. Morton, 512 F.2d 743, 749 (1975).

Citizens for Clean Air, Inc. v. Corps of Engineers, 349 F. Supp. 696
(N.Y. 1972).

County of Suffolk v. Secretary of the Interior, 562 F.2d 1368 (2d Cir.
1977); Cert. Den. 434 U.S. 1064 (1978).

11Sierra Club v. Morton, 510 F.2d 813 (1975).

1240 C.F.R. 6; 40 Fed. Reg. 16814, April 14, 1975.

13Id.

132 U.S.C. 1151, as amended by 33 U.S.C. 1251.

1533 U.S.C. 1251.

1 People v. Ludlum, 348 N.Y.S. 2d 20 (1972).
17
Askew v. American Waterways Operators, Inc., 412 U.S. 953 (1975).
18
33 U.S.C. 1251.

940 C.F.R. 120.

20
20See, infra, note 48.
21
2Clean Air Amendments of 1970, 42 U.S.C. 1857.

22
Id.
23
16 U.S.C. 1451(307)(f).
24
42 U.S.C. 1857.
25
2Fla. Laws 1975, Ch. 75-22 (1975). The legislative sponsor of the FERA
cited tour major problems with the system as it existed before the Act. First,
the process of environmental permitting had become exceedingly complex, and







the agencies with permitting responsibilities were taking inordinate amounts
of time to evaluate and act on permit applications. Second, there was a great
deal of duplication of effort among the various agencies involved in the pro-
cess. At that time, the major agencies with environmental responsibility were
the trustees of the Internal Improvement Trust Fund, the Department of Pollu-
tion Control, the Department of Natural Resources, the Game and Fresh Water
Fish Commission, and the Division of Health. Third, because of the segmenta-
tion of decision-making, there was a startling lack of accountability for
decisions made by various agencies. Finally, a pervasive problem was that
citizens needing permits found it difficult to determine to which agency the
application should be made. Barron, Environmental Reorganization Act -- The
Legislative Perspective, 50 Fla. Bar J. 264 (1976).

26Id.

27Landers, Function of the Department of Environmental Regulation, 50
Fla. Bar J. 269, 270 (1976). The former Department of Pollution Control was
abolished and its authority regarding air, water, and noise pollution, solid
waste disposal, and power plant siting were transferred to DER. The permitting
authority in navigable waters formerly exercised by the trustees of the Internal
Improvement Trust Fund were also transferred to the Department. Certain func-
tions of the Division of Health regarding drinking water supply regulation and
all major voter management responsibility and permitting authority previously
in the Department of Natural Resources under Chapters 373 and 298 were shifted
to DER.
I2d. at 270.

291d
29Id.

30Fla. Laws, Ch. 75-22, 4(7) (1977).

31Fla. Stat. 403.804(1) (1977).

32Fla. Stat. 403.804(2) (1977).
33d
Id.
34

35Fla. Stat. 403.804 (1977).
36Fl Stat. 413.807 (1977).
3Fla. Stat. 403.808(3) (1977).


38Fla. Stat. 403.808(3) (1977).

39Fla. Stat. 403.808(3)(4) (1977).

40Fla. Stat. 403.809(1) (1977).

41Fla. Stat. 403.809(2) (1977).








42
Fla. Stat. 403.809 (3)(a) (1977).


4Fla. Stat. 403.812 (1977).

45
4Fla. Stat. 373 (1977).
46d
46Id.

47Fla. Stat. 373.103 (1977).
48
4Fla. Stat. 403.011-403.4152 (1977).
49 St. 403.182 (1977).
5Fla. Stat. 403.182(3) (1977).
50
Fla. Stat. 403.182(3) (1977).
^Fla. Stat. 403.182(4) (1977).

52Fla. Admin. Code Ch. 18-2.

5Fla. Laws, Ch. 75-22 15 (1977).
54a. Stat. 253.12 (1977).
5Fla. Stat. 253.12(2)(a) (1977).

56Fla. Stat. 253.12(2)(a) (1977).

5Fla. Stat. 377.21 (1977).

58Fla. Stat. 377.21 (1977).

59Fla. Stat. 161377.22 (1977).

60Fla. Stat. 161.25 (1977).

61Fla. Stat. 161.38 (1977).
Fla. Stat. 161.25 (1977).







PART TWO; ACTIVITIES


In Florida, there are three types of local governmental units which may

be able to directly impact offshore energy development decisions. These

are municipalities, counties, and port authorities. Each of these have differ-

ent sources of authority and different jurisdictions. In analyzing potential

methods of influence, it is important to keep in mind which unit or units have

jurisdictionover the particular land or activity in question. For example,

local land use control measures may not apply within the boundaries of a port

authority. In contrast, county platting ordinances may apply to land within

municipalities, for example, Broward County.

Municipalities derive their power from the state. The jurisdiction of

each municipality is established either in its charter or by special act of

the legislature, and may extend to submerged land. For example, by special

act of the legislature, Key West may extend its police powers and jurisdiction

300 feet into the tidal waters adjacent to the corporate limits for certain
2
enumerated purposes. It is impossible to make generalizations about municipal

authority beyond the mean high tide line, due to the variety of special acts

and charters which control. It should be recognized that many cities have

boundaries well into the coastal waters.
3
The sources of power for counties include the Florida Constitution, the
4
Florida Statutes, and any county charter adopted by the voters of the county.

County boundaries are defined in Chapter 7, Florida Statutes. Many county

boundaries extend to the three mile or three marine league limit. This juris-

dictional extension may enable a county to directly influence or control acti-

vity off its shore.

Port authorities and port districts are quasi-governmental entities with

a broad range of powers. Port authorities may be autonomous bodies created










by special act of the state legislature,6 with the authority and jurisdiction

of the port and the degree of local control specified by law. Other port
7
authorities are created and controlled by local government. Again, the

creating ordinance or statute must be looked to for the authority and juris-

diction of the port authority or district. The amount of control a local

government can exert over a port authority or district can be extremely

significant since much onshore activity associated with offshore oil and gas

development will require port facilities. Chapter 315, Florida Statutes,

enumerates the powers granted to any port district, port authority, county,

or municipality regarding port facilities. This chapter is supplemental to
8
powers conferred by general, special, or local laws.

Part Two discusses offshore energy activity and the extent to which these

local governments can control and plan for onshore impact. Activities are

separated into Offshore Oil and Gas Development, Deepwater Ports and Shipping,

and Offshore Power Plants.








FOOTNOTES


iFla. Const., Art. VIII, 2(b); Fla. Stat. 166.021 (1977).

2Fla. Laws, Ch. 70-762 (1970).

3Fla. Const., Art. VIII, l(f)(g).

4Fla. Stat. 125 (1977)

5Center for Governmental Responsibility, Analysis of Laws Relating to
Florida Coastal Zone Maagement, 496 '(1976).

6E.g., Port Everglades and Port Canaveral.

7 E.g. Port of Pensacola and Port of Miami.

8Fla. Stat. 315.15 (1977).









I. OFFSHORE OIL AND GAS DEVELOPMENT

A. Offshore Leases

Local governments have little control over the federal government's

decision to lease Outer Continental Shelf lands for oil and gas development,

since no local permission is required prior to lease sales. However, local

governments do have opportunities for expressing their feelings toward

the proposed development. First, prior to any lease sale of OCS land, an

Environmental Impact Statement is required under the National Environmen-
1
tal Policy Act. Local governments may comment on the proposed leases

during the preparation of the EIS. A second opportunity for local government
2
comments has recently been provided in the new Continental Shelf Lands Act.

This Act requires that the Secretary of the Interior prepare a five year

oil and gas leasing program, which includes a schedule of proposed lease
3
sales, and to approve a development and production plan accompanying offshore
4
and onshore facilities. Local governments may submit comments for the
5
Secretary's consideration prior to the adoption of either of these plans.

However, the recommendations submitted by the executive of the affected local

government must be submitted to the governor before it can be submitted to
6
the Secretary. One weakness of the program as it relates to Florida is that

lessees in the Gulf of Mexico are not required to draft a development and

production plan. A third means by which local governments may gain some input

into the lease sale is the consistency provision of the Coastal Zone Management
8
Act. Should Florida adopt a state Coastal Zone Management Plan which meets

federal requirements, the state may attempt to block any lease sale which is

inconsistent with the state's plan. In Florida, local participation in the

Coastal Zone Management program is voluntary. However, under the Local

Government Comprehensive Planning Act, local governments are required to

complete a Coastal Zone Protection Element. If the local plan is deemed









I. OFFSHORE OIL AND GAS DEVELOPMENT

A. Offshore Leases

Local governments have little control over the federal government's

decision to lease Outer Continental Shelf lands for oil and gas development,

since no local permission is required prior to lease sales. However, local

governments do have opportunities for expressing their feelings toward

the proposed development. First, prior to any lease sale of OCS land, an

Environmental Impact Statement is required under the National Environmen-
1
tal Policy Act. Local governments may comment on the proposed leases

during the preparation of the EIS. A second opportunity for local government
2
comments has recently been provided in the new Continental Shelf Lands Act.

This Act requires that the Secretary of the Interior prepare a five year

oil and gas leasing program, which includes a schedule of proposed lease
3
sales, and to approve a development and production plan accompanying offshore
4
and onshore facilities. Local governments may submit comments for the
5
Secretary's consideration prior to the adoption of either of these plans.

However, the recommendations submitted by the executive of the affected local

government must be submitted to the governor before it can be submitted to
6
the Secretary. One weakness of the program as it relates to Florida is that

lessees in the Gulf of Mexico are not required to draft a development and

production plan. A third means by which local governments may gain some input

into the lease sale is the consistency provision of the Coastal Zone Management
8
Act. Should Florida adopt a state Coastal Zone Management Plan which meets

federal requirements, the state may attempt to block any lease sale which is

inconsistent with the state's plan. In Florida, local participation in the

Coastal Zone Management program is voluntary. However, under the Local

Government Comprehensive Planning Act, local governments are required to

complete a Coastal Zone Protection Element. If the local plan is deemed






by the state Department of Environmental Regulation to be consistent with

the state plan, the local government, as a participant in the state program,

can then express its views on whether the state should attempt to block the

lease sale. However, as a practical matter, the final decision on leasing

OCS lands is made by the federal government. Local resistance is not likely

to have a great impact on the federal decision.
10
If the proposed lease involves lands inside state waters, local government

may have a more direct impact. No oil and gas lease encumbering state lands
11
within corporate limits may be granted without corporate consent.

Additionally, before lands in the tidal waters of the state abutting or

immediately adjacent to the corporate limits of a municipality or lands

within three miles of the limits seaward of the mean high tide line are
12
leased, the municipality must consent by resolution. The county

commission must approve if the leased lands abut, are adjacent to, or

lie seaward and within three miles of an improved beach located outside an
13
incorporated town or municipality. As a result, municipalities have a

veto power over leases at least up to three miles offshore, and possibly further

if the corporate limits extend beyond three miles offshore on the Gulf coast.

Counties have a veto power only if the lease sale is adjacent to unincorporated

land.


B. Development Activity

1. Description of Offshore and Onshore Development Activities

Once offshore leases are sold, development activity will occur both on-

shore and offshore. The primary offshore activities will involve exploratory

rigs, construction of drilling platforms, and the construction of pipelines to

transport oil and gas from the wells to onshore storage facilities. Major

activities onshore may include pipeline landfalls and continuation; onshore

terminal and storage facilities; onshore support and service facilities;








gas processing facilities; crude treatment sweetening plants; refineries;

petro-chemical industry; and a platform construction industry. Each

activity is briefly described below. While it is uncertain that all of these

activities would occur in response to offshore drilling, it is important for

local authorities to realize that such potential does exist.


Onshore Terminal and Storage Facilities

Due to the many variables involved, it is difficult to predict the type

and size of onshore storage facilities. The size will vary depending on

whether oil and gas is to be processed locally or shipped or pipelined
14
elsewhere. A 150,000 barrel pipeline shore terminal will typically require

40 acres of land and include a pump station, three 50,000 barrel tanks, pipeline

connections (both from offshore to the facility and from the facility to a
15
refinery storage area), and possibly an office and radio tower. If oil is

shipped elsewhere for production, more storage may be required, possibly up

to several million barrels.6 A nearby refinery would include its own storage area.


Onshore Support and Service Facilities

The typical support and service facility would requireabout 50 acres of

land and include sufficiently deep channels7 and berthing areas for large
18
supply ships.8 In addition to the marine facilities, a supply and support base

would normally include a warehouse, a material storage area, a pipeline storage

and marshalling area, loading docks, heliport, office space, parking area,

crane service, railroad and highway connections, and a storage area for fuel
19
and water to be used offshore.


Gas Processing Facility

While limited processing may occur on the platform, gas is generally

pressurized and piped onshore for processing. Requiring approximately 20 acres

for building and an additional 30 to 55 acres for safety and other ancillary





20
uses "[a] model gas processing plant is assumed to have a per day processing
21
capacity ranging from 90 to 500 million cubic feet."21 Additionally, storage

tanks and facilities, transportation facilities, and pipeline connections to

a distribution network may also be required. "Daily water and electrical

requirements are estimated at 15,000 gallons of makeup water and approximately
,,22
1800 kilowatt hours of electrical energy."22


Crude Treatment Sweetening Plant

This type of special treatment facility might be necessary if the crude

oil and natural gas discovered offshore contained greater than 0.5% of sulphur
23
by weight. While the basic processing unit has a capacity of 12,000 to

24,000 barrels per day, the optimum method of operation would be to combine

enough units at a single site to generate a processing capacity of 100,000 to

200,000 barrels per day. Such a facility would require between 100 and 200
24
acres of land.2


Refineries

Since oil and gas can be pipelined or shipped elsewhere, offshore produc-

tion of oil and gas will not automatically result in refinery construction.

Should a refinery be built, it is likely to have a capacity of 100,000 to
25
300,000 barrels per day.25 In addition to the actual refinery, it will be
26
necessary to have storage facilities for five to ten days. The minimum land
27
requirement for a 200,000 barrel per day plant is between 1,200 and 1,400 acres.

Water consumption could range from nine to eighteen million gallons per day,

although if the water is air cooled, the requirement could drop to two million
28
gallons per day.28 Also, large amounts of electrical power will be required.

Potential estimates of this need range from 610,000 to 1,260,000 kilowatt

hours per day.29







Petro-Chemical Industry

Since petro-chemicals are derived from refined products and natural gas

liquids, development is most likely to occur near a refinery or where a petro-
30
chemical industry already exists. A typical complex can be estimated to re-

quire a minimum of 300 acres, 24 million gallons of water per day, and 600

million kilowatts per year of electricity.31


Platform Construction Industry

Since most shipyards are not designed for the construction of production

platforms, platforms would probably be towed to drilling sites from existing

platform fabricating facilities along the Gulf Coast of Texas, Louisiana, and
32
Mississippi.32 However, there exists the potential for the development of this

type of industry.


2. Platforms

Once offshore land is leased for oil and gas development, there is little

local governments can do to either encourage or discourage the construction

of platforms, as this 'decision will be governed by the likelihood of economic

success for the leaseholder. However, in those areas where local approval is

required prior to issuance of a lease, municipal or county approval is required

prior to the issuance by the state of a permit to drill a well.33 Unless the

platform is situated in an offshore area which is under local jurisdiction,

there is no available means for a local government to control platform and

drilling activities. Should a platform be located within a municipal or county

boundary, the local government may adopt stricter air and water pollution con-

trol standards than the state standards which would be enforced by the state
34
when licensing the platform.

Local governments should be aware of some of the potential environmental,

economic, and other impacts associated with an offshore platform. Environmen-






tally, the greatest dangers are a blowout during drilling or an oil spill
35
during pumping, handling, transportation, storage or processing.35 However,

the cumulative effects of various discharges from many platforms may be a

more severe problem. Certain by-products and chemicals are discharged into

the sea during platform operations, including drill cuttings and mud, certain
36
chemicals, water separated from gas and oil, and sand produced with the oil.

"Strict government regulations forbid dumping human sewage, solid wastes, or

other pollutants and debris into the sea."37

Economically, the largest direct impact is the effect of the platform on

commercial fishing.- Since the platform may act as an artificial reef, fishing

may improve. Jack up rigs or permanent platforms take up 2-5 acres of bottom
38
land, while a semi-submersible occupies 325 acres of bottom land. Even

subsea completions present a hazard to fish nets. Of course, the secondary

economic effects on the tourist industry caused by a blowout could be most

significant. Other impacts are the potential hazard to navigation and the

aesthetic effect of platforms within sight from land.


3. Pipelines

For the purposes of this paper, the pipeline network which would most

likely be occasioned by offshore oil and gas development can be divided into

three segments: the offshore pipelines, the pipeline landfall, and the on-

shore pipelines. Each segment presents different possibilities for local

governments to either affirmatively encourage, discourage, or prohibit

construction, and regulate construction once the decision is made to build.


Pipelines Offshore

The threshold question regarding the installation of pipelines is whether

a private company has a right to lay pipeline over land offshore. The land

within the state and territorial limits is presumably owned by Florida as

sovereignty submerged land. While petroleum pipeline companies do not have








eminent domain rights to land owned or operated by the state or its political

subdivisions, they do have rights to permits on those lands subject to

reasonable regulations.3

Chapters 403 and 253, Florida Statutes, govern the issuance of state

permits for oil and gas pipelines. Under Chapter 403, subaqueous transmission

and distribution lines are exempted from the permit requirement if they are

laid on or embedded in the bottom of waters of the state, other than in
40
Class II (shellfish) waters.4 "Embedded in" is defined as placement of

lines into the bottoms of waters by minimal displacement of bottom material

and without the creation of a trench or trough.41

Additionally, no Chapter 403 permit is required if the pipeline is

entrenched in rights of way where entrenchment of similar scope and impact has

occurred previously and where adequate turbidity controls are employed to meet
42
state standards. "Entrenched" is defined as the placement of lines by creation

of a defined trench or trough, through the use of such devices as clamshells,
43
dredges, trenching jets, or other devices producing similar results. Even

if no Chapter 403 permit is required in this situation, a permit under

Chapter 253 would be required. A Chapter 253 permit is required for install-

ing a subaqueous oil and gas transmission and distribution line entrenched in,44
45
laid on, or embedded in the bottom waters of the state.

Local governments may enact their own dredge and fill permit programs

under their general police power. For the local program to have any effect,

the local jurisdiction must extend beyond the mean high tide line. Absent

this extended jurisdiction, there is little a local government can do to directly

encourage, discourage, or regulate the offshore placement of a pipeline network.

However, local governments can indirectly encourage or discourage the location

of offshore pipelines through their onshore land use policies by either per-

mitting or prohibiting the necessary attendant pumping and storage facilities.







Pipelines Landfall

The most severe environmental impact of pipelines is likely to occur in

the area of their landfall. Marshlands and estuaries are most susceptible to
46
disruption by the activities associated with laying pipelines.

Once again, the threshold question is the right of the pipeline company

to lay their pipelines over a given piece of land. If the land is below the

mean high water line, it is presumably owned by the state. However, Chapter

253 recognizes conveyances of sovereignty submerged lands made to private indi-

viduals. Land above the mean high water mark is susceptible to private owner-

ship. Petroleum pipelines have no eminent domain right over public lands but
47
permits over the land are available subject to reasonable regulation. For

any land owned by private individuals, petroleum pipeline companies do have
48
the right of eminent domain.

There is considerable regulatory jurisdictional overlap in the area where

a pipeline comes ashore. State jurisdiction under Chapter 253 only extends

inward to the mean high tide line, so no permit is required under that statute

for any dredging and filling landward of this line. Chapter 403 jurisdiction
49
extends landward to the vegetation line. Landward of the mean high tide
50
line, jurisdiction for a Chapter 403 permit includes submerged lands and the
51
transitional zone. However, as mentioned in the previous section, many oil

and gas pipelines are exempt from this Chapter 403 permit. To increase the

confusion, since local jurisdiction will extend in some instances to the mean

high water mark (either a municipal boundary or an unincorporated county

boundary) local dredge and fill permits can be required. Furthermore, there

is the not too remote possibility that the pipeline landfall will occur in the

area of a port. Should this occur, the degree of local control over the port

authority or the port district is extremely important. Should the port be








highly autonomous, local land use controls may not apply and a local dredge

and fill permit may not be required.

Chapter 161, Florida Statutes, establishes a coastal construction setback

line 50 feet shoreward of the mean high water line (except for vegetative-type

non-sandy shores).2 The Department of Natural Resources may grant a waiver

or variance for pipelines extending outward from the shoreline unless it deter-

mines that construction would cause erosion of the beach in the area. Many

local governments have adopted their own construction setback lines. Counties

have the power to regulate and supervise all physical work or activity along

the shoreline which is likely to have a material physical effect on existing

53
coastal conditions or natural shore processes. This includes the right to

issue permits, but is subject to consent by DNR, any municipality, and any

other political authority involved (presumably port authorities or port dis-

tricts).

Local governments may be able to prevent certain lands from becoming pipe-

line landfalls through a mechanism which allows municipal and county govern-

ment to borrow money from the state to purchase land for establishing and
54
maintaining a public beach.54 Recreation must be the prime purpose of the

purchase. Public ownership of the beach would thus end the eminent domain

rights of pipeline companies under Chapter 361. A similar option would be for

a local government request of the state to create Historic Preservation Board

of Trustees over a given area with requisite powers to prohibit pipeline land-

falls.55

Local land use and zoning controls may also be used to prohibit pipelines

on certain lands. Two questions arise here, however. First, if Chapter 361

gives pipeline companies a presumptive right to pipelines over government-

owned lands subject to reasonable regulations, would a prohibitive land use

or zoning regulation be considered reasonable? Second, if the jurisdiction








forbade all pipeline landfalls, would this violate the Federal Coastal Zone

Management Act's mandate to consider regional energy needs?56


Pipelines Onshore

Once a pipeline comes ashore, it can either terminate at a storage facil-

ity located in that jurisdiction or pass through the jurisdiction to a storage

facility elsewhere. As a result, a land use policy prohibiting the necessary

storage facilities will not automatically preclude pipelines from coming ashore

or passing through a local jurisdiction. Obviously, local governments can

encourage pipeline development by allowing the requisite storage facilities.

Additionally, since the pipeline company needs land to lay the pipeline under

or on, local governments may be able to encourage development by providing

easements across public lands. Counties are permitted to grant licenses along

county roads not in a municipality for laying utility lines.57 Discouraging

a pipeline may be more difficult since if the pipeline company does not get

access to public lands, the company has eminent domain rights to private lands.58

An additional means of discouraging pipelines is to prohibit their location in

certain zoning districts, such as residential.59

Local governments also have some power to regulate pipelines once it is

established that construction will occur in their jurisdiction. Certain per-

formance standards can be enacted, including aesthetic standards. One

potential standard which may discourage construction due to economic

considerations would be a requirement that all pipelines be buried.


C. Potentials for Encouragement, Discouragement, and Control of Onshore
Development Activity

This section will describe various methods which may be employed by local

governments to encourage or discourage offshore oil and gas development through









the control of the development activities described in Section IIA. This

discussion will include opportunities for encouraging or prohibiting onshore

facilities as well as regulation of development.


1. Local Land Use Plans

The Local Government Comprehensive Planning Act requires local governments

to adopt comprehensive plans by July 1, 1979.60 All public and private develop-

ment must be in conformity with the elements of the comprehensive plan.61

Additionally, all development orders and land development regulations, which

included zoning, subdivision, building and construction regulations must be

consistent with the plan and its elements.3 Through the adopted elements of

their plan, local governments can decide whether to encourage or discourage

onshore development activities. For example, a local government may or may not

provide suitable land in their future land use element for refineries or supply

bases. A local government may address the issues of pipelines and pipeline

landfalls in their conservation, coastal zone, and public services and facil-

ities elements. As a port facility is essential to an onshore supply base, a

local government may encourage or discourage this type of activity through

the port facilities element. A local government seeking to encourage indus-

trial development can further express this policy through its economic element.

The position of a local government regarding onshore development activity re-

flected in the plan is important since all development orders and land devel-

opment regulations must be consistent with the adopted plan64

A local government may not be able to totally prohibit onshore development

activities through its plan. Local plans should be compatible with the state

comprehensive plan 65 and, if the local government participates in the program, the







state coastal zone management plan. Under the Coastal Zone Management Act,66

if a state participates in the program, local controls cannot unreasonably re-

strict uses of regional benefit. If there is a regional need for certain on-

shore development facilities, it would seem that provision must be made for

those facilities in some local jurisdiction's plan.


2. Land Development Regulations

Zoning

Zoning regulations adopted by municipalities and counties can affect

onshore facilities in three distinct ways. First, by defining the uses which

will be permitted or prohibited in the zoning districts in the jurisdiction,

local governments can either encourage or discourage onshore facilities. For

example, a local government may prohibit refineries from all zoning districts.68

Conversely, pipelines or storage tanks can be permitted in certain districts.

A second way that zoning ordinances can be used to encourage or discourage

onshore facilities is through their definitions of the uses permitted on indi-

vidual parcels of land. Generally, the entire jurisdiction is divided into

zoning districts with uses assigned to each district. A local government could,

in order to discourage the building of refineries, permit refineries in indus-

trial districts but then not assign any land to these districts. To encourage

development, a local government may zone land suited for onshore facilities

in an appropriate district.

A third impact of zoning regulations is not directed to permitting or pro-

hibiting onshore facilities but rather to regulating them once their use is

permitted. The traditional example of this type of zoning regulations is the

height, size, and setback requirements of individual zoning districts. Another

method is the adoption of performance standards for either a given district

or a given industry. Under this approach, standards are developed for factors









such as air pollution, water pollution, noise, noxious odors, hazardous mater-

ials, glare, safety, and aesthetics. If a proposed onshore facility meets the

industry or district performance standards for the selected categories, it is

then permitted.69 Another method of regulation which gives the local government

more flexibility is the adoption of a Planned Industrial District. A zoning

ordinance may also include aesthetic standards and safety requirements for

specified uses which would regulate the facility.


Subdivision Regulations
70
The threshold requirement for the application of subdivision regulations

can be either the division of land into individual lots or a development pro-
71
posal surpassing standards for size, height, activity, or impact. Subdivision

regulations may emphasize on-site development requirements. In that instance,

the regulations would address issues such as minimum lot sizes and maximum lot

coverage, setbacks, open space dedications, sewage trunk lines, land drainage
72
and utility lines.72 Subdivision regulations may also address themselves to

the externalities of the proposed development. Here, "the developer must

prepare a plan showing the impact of his project on activities, such as schools,

traffic, taxes, growth, vegetation, ecology, land use relationships, historical
73
sites, water, sewage and flood areas." A local government could combine

these two approaches to regulate the impact of such on-shore facilities as

refineries, storage areas, supply bases, and other potential developments.


Platting Regulations

Local governments may develop platting requirements for industrially used

lands, enabling local regulatory input at an earlier stage in the development
74
process. Platting regulations can address both the land and the externalities

of a proposed development. For example, Broward County provides that the








County Commission adopts a development order either approving the plat, denying

the plat, or approving the plat with conditions.75 All improvements to the

land must be either installed and completed or financially guaranteed.76 Other

conditions which may be imposed in platting requirements include dedication

of land or payment of impact fees.


Building and Construction Codes

Counties and municipalities may adopt and enforce building, plumbing,

electrical, gas, fire, safety, and sanitary codes.77 Local governments can

adopt regulations specifically applicable to the types of development activity
78
described previously.78 For example, Monroe and Dade Counties require that
79
oil and petroleum storage tanks be underground, and Fernandina Beach mandates
80
that underground storage tanks be secured to prevent floating.


3. Developments of Regional Impact
81
Under the Development of Regional Impact process, petroleum storage

facilities are presumed to be DRI's if the facility is either

located within 1,000 feet of any navigable water and has a storage capacity

of over 50,000 barrels or the storage facility has a capacity of over 200,000
82
barrels regardless of the location.82 Any industrial, manufacturing, or pro-

cessing plant under common ownership occupying a site greater than one square

mile (640 acres) is presumed to be a development of regional impact.83 Refin-
84
series generally require 1,200-1,400 acres,84 but other activities may not ex-

ceed this size threshold. However, the First District Court of Appeals has

held that these threshold figures are only a presumption, and the Division of

State Planning must ultimately decide if the magnitude, character, or location

of the proposed development is such that it should be classified a development

of regional impact.85
of regional impact. h








Once.a project is declared a DRI, the local government in whose jurisdic-

tion the project is located has 90 days to adopt zoning or subdivision regula-

tions if none already exist. Once the area is covered by regulations, the

developer must submit an application to the local government or government

having jurisdiction, with copies to the regional planning agency and the Division

of State Planning.6 The regional planning agency determines the sufficiency

of information contained in the application and may demand additional infor-

mation from the developer.88 The regional planning agency must then prepare

a report and recommendations on the regional impact of the proposed development

for the local government The local government then holds a development of

regional impact public hearing90 prior to entering a development order either

approving the development, approving the development subject :to conditions, or

denying the development.? The development order may be appealed to the Florida

Land and Water Adjudicating Commission.2

While the DRI process is not applicable to all development activities,

when applicable, the process ensures a local government of enough information

to intelligently decide whether to approve or deny a development and, through

the development order issued on approval, allows a local government to place

conditions on the proposed development.


4. Economic Encouragements and Prohibitions

Tax Incentives

In Florida, the major tax levied by local governments is the ad valorem

tax. Under Florida law, a local government cannot give an ad valorem tax in-

centive to lure onshore development activity on privately owned land due to

three main prohibitions. First, all ad valorem taxation must be at a uniform

93
rate within each taxing unit. This provision would bar a local government

from offering a lower millage rate to the developer of an onshore facility.







Second, all property must be assessed at a just valuation for ad valorem tax-

ation.94 The property appraiser must consider the present cash value of the

property along with the highest and best use of the property.95 The Florida

Supreme Court has interpreted these provisions to require that all property

be assessed at 100% of full fair market value.96 Therefore, local governments

are prohibited from offering a lower property appraisal to the developer of

an onshore facility. Third, the only ad valorem taxation exemptions for

privately owned property authorized by the constitution are for property used

predominantly for educational, literary, scientific, religious, or charitable

purposes.9 Since onshore facilities do not fit into these categories, local

governments cannot exempt onshore facilities constructed on privately owned

land from ad valorem taxation.

However, the Florida Constitution exempts property owned by a municipal-
98
ity and used exclusively for municipal or public purposes. This exemption

raises the possibility of local governments or port districts leasing govern-

mentally owned lands for the development of onshore facilities. Leasehold

interests in governmentally owned property are subject to ad valorem taxation99

unless ". .the lessee serves or performs a governmental, municipal, or public

purpose or function,"100which is defined as functions or purposes ". .which

could properly be performed or served by an appropriate governmental unit or

which is demonstrated to perform a function or serve a purpose which would

otherwise be a valid subject for the allocation of public funds."'01 Thus, the

nature of the use becomes the key issue. Private profit is permitted as long
102
as the predominant use of the property is a public one. As the Coastal Zone

Management Act mandates consideration of the national interest in siting energy

facilities,03 it may be contended that the types of onshore development acti-

vities described in Section IIA are uses of a public purpose, and thus any

leasehold interest would be entitled to an ad valorem tax exemption.









A further tax incentive can be given by local governments in the structure

of their Public Utility Service Tax Rate. Certain onshore facilities require

large amounts of water and electricity. A local government may adjust the tax
104
rate on these items to either encourage or discourage development.


Bonds for Facility Development

While local governments are prohibited from using their taxing power or
105
credit to aid any corporation, association, partnership, or person, counties,

municipalities, and special districts may issue revenue bonds to finance or
106
refinance the cost of capital projects for ports and for industrial and man-

ufacturing plants 07as long as the revenue bonds are payable solely from revenue
108
derived from the sale, operation, or leasing of the projects. If any portions

of such projects are operated or occupied by a private corporation, association,

partnership, or person, the property interest created by the sale or lease is
109
subject to ad valorem taxation. However, the same public purpose standard
110
described above applies. To economize the siting of onshore facilities in

their jurisdiction, local governmental units can issue revenue bonds to construct

any of the facilities described in Section IIA.


Local Land Acquisition and Preparation

Local governments may insure that suitable land is made available for the

construction of onshore facilities through purchase of property. For example,

the Manatee Industrial Development Authority is authorized to purchase property
111 112 113
to promote industry. Cities by their charter and counties may acquire

property by eminent domain. Lee County has authorized the use of the taxing

114
and bonding power to drain lands to increase their usability. By acquiring

and preparing suitable lands, local government can encourage the location of

onshore facilities within their jurisdiction.







Direct Expenditure of Public Funds to Construct Facilities

In addition to constructing facilities through the issuance of revenue

bonds, local governments may be able to directly expend public funds for the

construction of certain facilities. Nassau County has attempted to use this

approach by granting power to their Port Authority to acquire, construct,

and equip an "oil refinery and related facilities to be leased to a private

corporation," with public funds.115


Public Utility Water and Electric Rates

Many onshore facilities require large amounts of water and electricity.

If a county or city provides water and/or if a municipality supplies electri-

city, the rate structure may be used to either encourage or discourage the

location of those facilities within the service area.


Economic Effect of Other Regulations

A secondary effect of certain police power regulations may make the cost

of onshore facilities prohibitive. For example, certain air and water pollu-

tion requirements may have the effect of forcing development elsewhere. The

Monroe County requirement that oil and petroleum product storage tanks be

116
underground creates a prohibitive cost due to the coral rocks and high water

table.


5. Local Pollution Regulations

Each county and municipality may establish and administer a local air
117
and water pollution program Any local program must be either comparable
118
with or more stringent than the state requirements.18 While the State Depart-

ment of Environmental Regulation has exclusive permit authority, it may delegate
119
this authority to local government. 119 In addition to air and water quality

standards, local governments can regulate or prohibit noise and odor pollution.








As many of the onshore development activities present potential pollution

problems, a strict local program of pollution control could serve to further

regulate or discourage certain activities.


6. Harbor and Port Controls

Harbors and ports may be administered by various governmental units.

Independent port authorities or port districts may be established by special

act of the legislature, or port authorities may be established and operated

by local authorities [see "Ports" in Local Jurisdiction Section]. Certain

administrative units, such as the Santa Rosa Island Authority, have jurisdic-
120
tion over ports within their boundaries. The type of governmental unit

and the specifics of its enabling legislation dictate the types of controls

that may be exercised.

Florida Statute 315.03 enumerates certain powers granted to counties,

port districts, port authorities, and municipalities, including "powers neces-
121
sary to build, repair, and improve ports and port facilities." 121 These powers
122
are supplemental to powers conferred by general, special, or local laws.

Activities at the port may be controlled by port regulations or tariffs.

These may grant the port manager extensive discretionary powers in the day to

day administration of the port, including the right to accept or reject cargo
123
such as flammable or dangerous materials. Thus, offshore oil and gas may

be prohibited from entering the port.

If the port authority or port district is autonomous, local land use con-

trols may not apply. A port may choose to develop onshore facilities even

though the municipality or county within which the port is located opposes

this type of development.

Port tariffs can require the application of Coast Guard rules to the

handling and storage of flammable materials and to the discharge of petroleum






products into port waters.124 Dyking sufficient to hold the entire capacity

of the tank may be required around petroleum storage tanks.125 Port districts

may impose additional permit requirements in the interest of safety. For

example, Port Everglades requires a cutting and welding permit from the Port

Authority prior to using torches within the Port's jurisdiction. Liability

insurance is a prerequisite to obtaining a permit.126

Strict fire regulations may be imposed within the Port's jurisdiction.

Port Everglades maintains its own fire department trained in combatting petro-

leum fires, supported by mutual aid contracts with the surrounding municipal-
127
ities.27 Additionally, all tugs operating out of Port Everglades must have

foam and dispersal capacity on board.

Potential oil spills can be planned for. Along with the safety measures

previously mentioned, ports may assess the cost of cleanup plus a penalty to
128
those responsible for the spill. Port Everglades has established a spillage
129
committee and each member contributes to a spillage fund.

Development of onshore facilities within port districts and port author-

ities may also be aided by the bonding powers of the port, the exemption from

local taxation of port facilities, and any taxing power conferred on the port
130
by general or special tax.


7. Historic Preservation Districts

Historic preservation districts may be created within the Department of
131 132
State, or may be established by local governments. These districts may

help protect certain historic areas from the impact of onshore development

activity. For example, a waterfront historic preservation district may pre-

vent a pipeline landfall in that area. The district may be able to acquire

property, thus giving the local government further protection.








8. Area of Critical State Concern Designation

Up to five percent of the land in the state may be designated as areas of
133
critical state concern. Area may be designated if the area contains an

impact on environmental, historical, natural, or archaeological resources of
134
regional or statewide importance.4 Local governments can recommend study

areas through their regional planning council or themselves if there is no
135
planning council. Once an area is designated, detailed development regula-
136
tions must be developed in one year.136 As the development regulations will

primarily be designed to protect the area, development of onshore facilities

will be difficult. The Florida Supreme Court has held that the provision in

Chapter 380 allowing the governor and cabinet to designate areas of critical

137
state concern is unconstitutional. The legislature is expected to

re-examine the process next session.


9. Interlocal Agreements

Because of the multiplicity of governmental units, a decision by one

local government to either encourage or discourage construction of onshore

facilities will impact on other local governments and may conflict with the

decisions made by neighboring jurisdictions. For example, a port district may

issue revenue bonds to construct a petroleum storage terminal within the port

district while the municipality or county encompassing or adjoining the port

may be adamantly opposed to any onshore development activity. The Local Gov-

ernment Comprehensive Planning Act process is designed to identify policy

138
conflicts between different government units.3

Local governmental units may jointly exercise power through a contract

called an interlocal agreement39 or formation of a Council of Local Public
140
Officials. Through either process, local governments particularly affected

by offshore development can control the onshore impacts on an area-wide basis.







10. Secondary Impacts

Any offshore oil and gas development and attendant onshore facilities

will have many secondary impacts on the local governments in the area. This

secondary impact would include traffic, housing, schools, parks, police and

fire protection, and community facilities. However, these impacts are not

unique to offshore oil and gas development. It is beyond the scope of this

article to discuss these secondary effects141
article to discuss these secondary effects.










FOOTNOTES


42 U.S.C.: Union Oil Co. of California v. Morton 484 F.7d.
2
Pub. L. No. 95-372, September 18, 1978.

Id. 208, new 18.

Id. 208, new 25.

5Id. 208, new 19.

61Id.
7
Id. 208, new 25.

Pub. L. 92-583, 86 Stat. 1280, 307C (1972), 749 (1975).

9Fla. Stat. 163.3177(6)(g) (1977).

0To three miles from mean low water mark on the Atlantic Coast and to
three marine leagues on the Gulf coast.
11la. Stat. 253.61()(a) (1977).
1Fla. Stat. 253.61(1)(b) (1977).

3Fla. Stat. 253.61(1)(c) (1977).

14
4A. Pearman and J. Stafford, Florida Coastal Policy Study: Impact of
Offshore Oil Development. [hereinafter cited as Pearman & Stafford].

15Id. at 95.
16
1Id. at 60.

1About 15 feet. Conversation with Ray Siuta, Bureau of Coastal Zone
Planning.
18
8Pearman & Stafford, supra note 14, at 62.

1Id. at 62 and 93.

20
2New England River Basins Commission, Factbook, Onshore Facilities Related to
Offshore Oil and Gas Development, 5.13 (1976). [Hereinafter cited as FactbookT.

21Pearman & Stafford, supra note 14, at 63.











22Id.

23Id. at 66.

24Id.

25Id. at 68.

26d.

27Id.
27
Id.
28
28Id. at 68-69.
29
29Id. at 69.

30Id. at 72.
311d
Id.
32
32Id. at 56-58.

3Fla. Stat. 377.24 (1977).

34Fla. Stat. 403.182 (1977).
35
35Pearman & Stafford, supra note 14, at 134.

3d. at 134-135.
37
Id. at 134.
38
Id. at 136.

3Fla. Stat. 361.06 (1977).
40Fla. Admin. Code, Ch. 17-4.04()(q).

4Fla. Admin. Code, Ch. 17-4.02(14).


42Fla. Admin. Code, Ch. 17-4.04(10)(9).

43Fla. Admin. Code, Ch. 17-4.02(15).

4But not exceeding 10,000 cubic yards of dredging.

45Fla. Admin. Code, Ch. 17-4.29(3)(f).

46Factbook, supra note 20.











4Fla. Stat. 361.06 (1977).

48Id.

49
4Fla. Admin. Code, Ch. 17-4.
50
Fla. Admin. Code, Ch. 17-4.02(17).
51
Fla. Admin. Code, Ch. 17-4.02(19).

5Fla. Stat. 161.052(1) and (5) (1977).

53Fla. Stat. 161.35(1) (1977). See, Part One, III, text accompanying
notes 67-69, supra.

5Fla. Stat. 375.065 (1977).

5Fla. Stat. 266 (1977).

56See, Part One, I, supra.

57Fla. Stat. 125.42 (1977).

58Fla. Stat. 361.06 (1977).
59
59See, text accompanying notes 67-69, infra.
60
Fla. Stat. 163, Pt. 2 (1977).

6Fla. Stat. 163.3161(5) (1977).

62Fla. Stat. 163.3194(2)(b) (1977).

63Fla. Stat. 163.3194(1) (1977).

64The types of land development regulations and development orders affected
are discussed in the text accompanying notes 67-80, infra.

65Fla. Stat. 163.3177(4), 163.3184, (6) (1977).

6616 U.S.C. 1451-1464, 1455.

67Fla. Stat. 163.205 (1977) enables municipalities and counties to
adopt zoning ordinances.

6As Key Colony Beach does, Ordinance No. 66 as amended (1976); Center
for Governmental Responsibility, Analysis of Laws Relating to Florida Coastal
Zone Management 375 (1976). [Hereinafter cited as Analysis].












69This approach is permitted by Fla. Stat. 163.205(1)(h) (1977).

70Fla. Stat. 163.260-.299 (1977) enables counties and municipalities
to adopt subdivision regulations.

71Analysis, supra note 68, at 72.
72d. at 473.

731d. at 473.

74Fla. Stat., Part I, establishes minimum platting requirements.
Chapter f17.011 allows additional regulations by local government.

75Broward County Ordinance 77-43 302 (1977).

761d. 502.

77Fla. Stat. 163.295 enables counties and municipalities to adopt and
enforce building, plumbing, electrical, gas, fire, safety and sanitary codes.

78See, Section IIA.

79Analysis, supra note 68, at 376.

801d.
81
Fla. Stat. 380 (1977).
82Fla. Admin. Code, Ch. 22F-2.08.

8Fla. Admin. Code, Ch. 22F-2.05.


84See text accompanying notes 25-29, supra.

85General Development Corp. v. Division of State Planning, 353 So.2d
1199 (1st DCA Fla. 1977).

86Fla. Stat. 380.06(6) (1977) and Fla. Admin. Code, Ch. 22F-1.20(3).

87Fla. Admin. Code, Ch. 22F-1.20(5).

88Fla. Admin. Code, Ch. 22F-1.20(5)(b).

89Fla. Stat. 380.06(8) (1977).












90
9Fla. Stat. 380.06(7) (1977).

91Fla. Admin. Code, Ch. 22F-1.23(1) and (3)(b), (c), (d).

92Fla. Stat. 380.07(5) (1977).

93Fla. Const. Art. VII 2.

94Fla. Const. Art. VII 4.

95Fla. Stat. 193.011(1) and (2) (1977).

96Spooner v. Askew, 345 So.2d 1056 (Fla. 1976).

97Fla. Const. Art. VII 3.
98Id.

99Fla. Stat. 196.001(2) (1977).

100Fla. Stat. 196.199(2)(a) (1977).

101Fla. Stat. 196.012(5) (1977).

102Dade County v. Pan American World Airways, Inc., 275 So2d. 505 (Fla.
1973), Walden v. Hertz, 320 So.2d 385 (Fla. 1975), aff'd. 299 So.2d 121
(2d D.C.A. Fla. 1974).

10316 U.S.C. 1455(c)(8).

1For example, Fort Lauderdale taxed at a rate of 10% for the first $100
of the bill and 3% for the amount of the bill over $100. Ordinance No. C-72-80
(1972) amended Ord. No. C-77-139 (1977).

105Fla. Const. Art. VII 10.

106Fla. Const. Art. VII 10(c)(1).

107Fla. Const. Art. VII 10(c)(2).

108Fla. Const. Art. VII 10(c).

1091d.

110Walden v. Hertz, 320 So.2d 385 (Fla. 1975), aff'd. 299 So.2d 121
(2d D.C.A. Fla. 1974).






111
Manatee County Code 16 (1974).
112
E.g., Analysis, supra note 68, at 559.
113
Fla. Stat. 127 (1977).

114
Lee County Code, Ch. 12 (1973).
115
Nassau County Code, Ch. 19, Art. III (1970); Center for Governmental
Responsibility, Compilation of Laws Relating to Florida Coastal Zone
Management 300 (1976).
116
Analysis, supra note 68, at 376.

117 Fla. Stat. 403.182(1) (1977).

118 Fla. Stat. 403.182(1)(b) (1977).

119 Fla. Stat. 403.182(2) (1977).

120
Analysis, supra note 68, at 492.

121
Id. at 494.
122
Fla. Stat. 315.15 (1977).
123
1 Analysis, supra note 68, at 494.

124 Id. at 495.

125Port Everglades, Security Regulations 3 (1975).

126
126 Interview with Fire Chief Maner, June 15, 1978.

127
Id.
128 Port Canaveral, Tariff No. 3, Item 240 (1968).

129 Interview with Martin A. Mets, Assistant to the Director of Operation,
Port Everglades, June 15, 1978.
130 Fla. Stat. 315.01-315.16 (1977).

131 Fla. Stat. 266 (1977).

132See, e.g., Pensacola, Charter, 247.

133 Fla. Stat. 380.05(17) (1977).

134
134 Fla. Stat. 380.05(2)(a) (1977).

135
Fla. Stat. 380.05(3) (1977).

136 Fla. Stat. 380.05(12) (1977).










137
1Askew v. Cross Keys Waterways, Fla. Law Weekly, 11/24/78, p. 546.
The court upheld a challenge to the designation of virtually all of the
Florida Keys as an area of critical state concern. The court held that
Section 380.05(2)(1) and (b), Fla. Stat., which attempted to provide standards
for the Administrative Commission in designating areas as being of critical
state concern were inadequate to support this delegation of legislative power
and therefore was violative of Article II, Section 3 of the Florida Constitution.

1Fla. Stat. 163, Pt. 2 (1977). See text accompanying notes 60-66, supra.

139Fla. Stat. 163.01(5) (1977).
140
4Fla. Stat. 163.02(1) (1977).

141Pearman & Stafford, supra note 14.









II. DEEPWATER PORTS AND SHIPPING

Because of the continued United States' dependence on foreign sources

of oil, the shipment of oil through the Florida straits and the possi-

bility of a deepwater port adjacent to Florida presents a real and growing

threat to local communities in the state. Unfortunately, while the impacts

on a local government could be great, methods for exerting local control

over these activities are not. All the primary activities occur offshore,

and regulation of these has, for the most part, been preempted by federal

and state law. However, the secondary growth impacts onshore following

construction of a deepwater port and the potential environmental and economic

damage which would result from a large scale oil spill are matters which

could completely alter the characteristics of a community. A brief description

of these activities will serve to illustrate the potential problems.


A. Deepwater Ports Facilities and Impacts

Deepwater ports require water approximately 100 feet in depth. The

100 foot contour off the Florida coast in only close to shore from Palm Beach

to Key West (in some places within the state's three miles jurisdiction)
2
and in the Pensacola-Panama City (13 to 24 miles off shore). This does

not preclude development in other areas, as proposals have been made to

construct a deepwater port 30 miles off the Gulf coast of Manatee County

in 100 feet of water and another 12 miles off the Atlantic coast of
3
Fort Pierce.

One of four basic types of facilities are likely. Single buoy mooring,
4
or monobuoy, consists of a buoy anchored by chains to submerged piles.

This system allows the ship to drift, thus aligning itself with the wind,









II. DEEPWATER PORTS AND SHIPPING

Because of the continued United States' dependence on foreign sources

of oil, the shipment of oil through the Florida straits and the possi-

bility of a deepwater port adjacent to Florida presents a real and growing

threat to local communities in the state. Unfortunately, while the impacts

on a local government could be great, methods for exerting local control

over these activities are not. All the primary activities occur offshore,

and regulation of these has, for the most part, been preempted by federal

and state law. However, the secondary growth impacts onshore following

construction of a deepwater port and the potential environmental and economic

damage which would result from a large scale oil spill are matters which

could completely alter the characteristics of a community. A brief description

of these activities will serve to illustrate the potential problems.


A. Deepwater Ports Facilities and Impacts

Deepwater ports require water approximately 100 feet in depth. The

100 foot contour off the Florida coast in only close to shore from Palm Beach

to Key West (in some places within the state's three miles jurisdiction)
2
and in the Pensacola-Panama City (13 to 24 miles off shore). This does

not preclude development in other areas, as proposals have been made to

construct a deepwater port 30 miles off the Gulf coast of Manatee County

in 100 feet of water and another 12 miles off the Atlantic coast of
3
Fort Pierce.

One of four basic types of facilities are likely. Single buoy mooring,
4
or monobuoy, consists of a buoy anchored by chains to submerged piles.

This system allows the ship to drift, thus aligning itself with the wind,









waves, and current. A freely rotating floating hose carries oil from the

middle of the ship to the buoy. Once oil reaches the buoy, the oil passes
5
by submarine hoses to a submerged pipeline and then to shore.

A second type of facility, called conventional buoy mooring, locks

the tanker in a fixed heading by mooring it to several buoys.6 Oil is

pumped from the tanker directly to submarine lines and then to shore. These

lines remain submerged when not in use and are marked by hose marker buoys,

permitting their recovery when needed.7

The third alternative is called a single pile mooring. While similar

to the monobuoy in that the tanker is free to drift, the system replaces
8
the monobuoy and submarine hoses with a tower attached to the sea bottom.

A floating boom is used rather than floating hoses to unload the tanker.9

A fourth possibility is the construction of an artificial island with

a sea island berth. The island could also contain a tank farm,10 and act

as a transshipment point. As this is the most expensive alternative, its

construction off the Florida coast is least likely.11

The descriptions of the types of unloading facilities have assumed oil

would be piped onshore for storage. However, it is possible that the

storage facilities could be located offshore. Should this be the case,

oil could eventually reach shore either through pipelines, barges, or

smaller ships.

Specific onshore impacts will include support facilities, pipelines,

storage facilities, refineries, and petrochemical industries.12 As with

offshore oil and gas development, the types and magnitude of onshore impacts

are dependent on the amount of oil to reach shore. However, the amount of

oil to reach shore is potentially much greater as a result of a deepwater

port. For example, in a scenario developed to study onshore impacts of








of offshore oil and gas development for Manatee County a total of 77 lease

tracts were aggregated, projecting a peak daily production of 136,000

barrels of oil per day.13 In contrast, the proposed Seadock deepwater port
14
off the Texas coast would import four millions barrels per day.14 So while

the types of onshore facilities would be similar, the actual onshore impacts

of a deepwater port can be much more severe.


B. Shipping Volume and Impacts

The primary motivation for the construction of deepwater ports is to

utilize supertankers, which because of economies of scale, transport oil

at a much lower per barrel cost than conventional tankers. Supertankers,

or very large crude carriers (VLCC's) can carry between 100,000 and 500,000

deadweight tons (dwt) of crude oil. Currently, conventional tankers used

to ship oil to the United States range from 30,000 dwt to 50,000 dwt.15

As is readily apparent, the potential danger from an oil spill is much

greater when VLCC's are used.

While supertankers would be attracted to a Florida deepwater port, they

pose a threat to Florida even absent a deepwater port off its coast. Two

deepwater ports have been proposed in the Gulf of Mexico Louisiana Offshore

Oil Project, Inc. (LOOP) off the coast of Louisiana and Seadock, Inc. off the

coast of Texas. LOOP projects 675 tanker visits per year, with between 55 and 200

of the loaded passages through the Florida Straits.16 It is likely that a

majority of the ballast laden tankers will exit by way of the Florida Straits, thus

adding further congestion to this narrow passage.17 The coastal impact area from

these trips has been defined as the area from Fort Pierce to the Dry Tortugas on
18
the Atlantic and the Dry Tortugas to Everglades City on the Gulf.8 Using

assumed tanker routes, a spill is possible anywhere along the coast from








from the Dry Tortugas to Miami.19 The environmental and economic effects

of a spill in this area can be devastating, since the area contains many

small islands, beaches, bays, coral reefs, seagrass beds, estuaries,

extensive coastal marshes, and many tourist facilities and fishing areas.

The danger to the state posed by the size of the ships and the number

of passages through the narrow Florida Straits is further compounded by the

20 year life cycle of tankers. Since nearly the entire present generation

of supertankers was launched between 1966 and 1975, the dangers of structural

failure will increase dramatically in the 1980's.20


C. Local Control of Deepwater Ports

The types of onshore facilities associated with a deepwater port will

be similar to the facilities accompanying offshore oil and gas development,

although the volume and thus actual onshore impacts associated with a

deepwater port could be much greater. Since the types of onshore facilities

are so similar, the methods of local control which were discussed in the

offshore oil and development section apply equally here. Therefore, this

discussion will only be concerned with possible methods of local control of

the offshore facilities described in Section A.

The construction of any facilities off the coast of the United States

and beyond the territorial sea21 will be governed by the Deepwater Ports

Act of 1974.22 The territorial sea of the United States encompasses the

area within three miles of the coastline, so presumably any deepwater port

constructed beyond this three mile limit, which is under state ownership

by virtue of the Submerged Lands Act of 1953,23 is subject to a combination

of state and federal controls. However, the effect of Florida's three

marine league boundary in the Gulf of Mexico and the definition of

territorial sea is unclear. While the state may have a certain amount







of input through either adjacent coastal state status24 or through the
25
consistency provision of the Coastal Zone Management Act,25 a local

government has no direct input under the Deepwater Ports Act and may be

limited to commenting on the Environmental Impact Statement which must be

prepared.

If a deepwater port is constructed within the state boundary (three

miles on the Atlantic, three marine leagues on the Gulf), a combination

of state and federal control will be exercised. The state would require

registration of the terminal facility under the Pollutant Spill Prevention

and Control Act.26 This Act imposes strict liability for any damage incurred

by the state or private persons as a result of an oil spill in Florida's

territorial waters, with a limit of $14 million or $100 per gross registered

ton of the vessel.27 If the discharge resulted from gross negligence or

willful misconduct, the liability is unlimited.28 This provision corresponds

to the limits of liability in the Federal Water Quality Improvement Act

of 1970.29 This no-fault liability covers both the terminal and any ship

destined for or leaving the terminal. The Supreme Court has held that the

Federal Water Quality Improvement Act of 197030 as amended by the
31
Federal Water Pollution Control Act Amendments of 1972,31 which requires

reimbursement to the federal government, does not preempt the field and

the Florida Act is in harmony with the federal acts.32 The Florida Act

allows counties and municipalities to exercise their police powers as long

as their exercise is not in direct conflict with the Florida Act, or rules,

regulations, or orders of the Department of Natural Resources under the
33
authority of Chapter 376.33 However, the counties and municipalities can

not adopt similar programs of licensing and fees as are adopted by the state

Act.34 The key to exercising any power is the local government's jurisdiction

over its offshore area. As mentioned in the Offshore Oil and Gas Development









portion of this paper, county or municipal jurisdiction over the site of

the port may allow the local government to adopt stricter air and water

pollution control standards than the state standards. These stricter

standards would be enforced by the state when permitting the deepwater

port.

One additional method of local control may be available to counties.

Where the county jurisdiction extends to the state boundary off-shore, the

DRI process may apply to a deepwater port located within the county limits.

The proposed construction of any water port is presumed to be a DRI.36

It is presently unclear whether the DRI process could be applied to offshore

areas, but if applicable, deepwater ports off the southeast Atlantic coast

may fall within local jurisdiction.


D. Local Control of Shipping

There are three main areas of regulation to control supertankers.

These are safety requirements which regulate or prohibit passage of

supertankers within a local jurisdiction; safety requirements in construction,

equipment, and design of supertankers; and liability for oil spills. Oppor-

tunities for local control of these areas is minimal.

Neither the state nor any local government would have jurisdiction over

a supertanker outside the territorial waters of the state. Once a tanker

came within the boundaries of the state, local influence would still be

limited by the extent of local jurisdiction. Unless a municipality's

jurisdiction extended beyond the mean high tide line, no local control is

possible. Counties whose jurisdiction extends to the state boundary can at

least argue a jurisdictional basis for regulation. Even assuming a super-

tanker would sail through a local jurisdiction, another serious barrier to

local control would be the doctrine of preemption, both on a federal and







state level. The Supreme Court has held that the Ports and Waterways

Safety Act of 197237 authorizes the federal government "to establish

vessel size and speed limitations38 and. ."by permitting the state to

impose higher equipment or safety standards 'for structures only', impliedly

forbids higher state standards for vessels."39 This holding invalidated

a Washington state law excluding from Puget Sound any tanker in excess of

125,000 dwt. The court further supported this holding by citing a House

Report on the bill which discussed amending the bill to make "clear that

State regulation of vessels is not contemplated."40 In the same case, the

Supreme Court also invalidated a Washington state law requiring certain

design standard safety features, holding that Title II of the Ports and

Waterways Safety Act of 1972 "intended uniform national standards for design

and construction of tankers that would foreclose the imposition of different

or more stringent state requirements."41 Thus it would seem there is little

potential for local or even state control over the first two areas of

regulation.

There may be an opportunity for some local input in the area of liability

for oil spills. However, it should be noted that unlike the first two

categories of regulation which were designed to prevent oil spills, this

area involves after-the-fact assessment of costs. The Federal Water Quality

Improvement Act of 197042 prohibits the discharge "of oil into or upon the

navigable waters of the United States, adjoining shorelines, or into or

upon the waters of the contiguous zone."43 This Act establishes liability

for the costs incurred by the federal government in cleaning up the pollution.

However, the Act still holds the owner or operator of a vessel liable "under

any provision of law for damages to any publicly owned or privately owned

property resulting from the discharge. .or. .removal of any such oil".44









The Act specifically does not preempt any requirement or liability for

discharge of oil into state waters imposed by any state or its political
45
subdivisions and allows any "state or local law not in conflict with

this section".46

Florida enacted the Florida Oil Spill Prevention and Pollution Control
47
Act47 which allows the state to recover its costs in cleaning up oil spills

and provides a remedy for public and private property owners against the
48
party responsible for the spill. The Florida Act allows any county or

municipality to adopt similar liability provisions as long as it does not

directly conflict with the state law and as long as it does not adopt a

similar program of licensing or fees as established by the state Act.49

The Florida Act only imposes strict liability for damages incurred "as a

result of an oil spill in the state's territorial waters from any waterfront

facility. .and from any ship destined for or leaving such facility".5

Thus, the Florida Act does not cover supertankers passing by the state and

not using any terminal facility. Therefore, it would seem that a local

government may enact a law allowing it to recover its costs in cleaning up

the oil spill and providing for a strict liability remedy for public and

private property owners against the party responsible for the bill.

Some potential problems with this approach should be addressed. First,

the federal Act allows states to impose liability for the discharge of oil

into any waters within such state.51 It is not clear whether this means

the actual discharge must occur in the state's waters or if the discharge

must merely reach state waters. Estimated shipping routes would bring
52
crude carriers in the vicinity of 25 miles off the Florida coast. Oil

would thus not be discharged directly into state waters, but would likely

drift into the state's jurisdiction.







Another potential problem is that, if the discharge must occur in

state waters for state jurisdiction to apply, presumably the discharge

would have to occur within the jurisdiction of whatever unit of local

government sought to impose liability. A third problem is that the
53
Federal Limited Liability Act53 extends to damages occurring on shore

caused by oil spills. The Act limits liability of the vessel's owner to
54
the "value of such vessels and freight pending". The court in the

Askew case specifically withheld judgment on whether that limitation

applies or whether the limits of liability specified in the federal

Act applies.55 It is clear from that case that unlimited liability has

been preempted by the federal Act.56 Therefore, any local act may be

restricted by the Limited Liability Act.








FOOTNOTES

1
A. Pearman and J. Stafford, Florida Coastal Policy Study: Impact of
Offshore Oil Development 217 [Hereinafter cited as Pearman & Stafford].

2Id.

Id. at 219-220.

4Id. at 195.

5Id.

Id.

Id. at 196.
8Id.

9Id.
10
Senate Committee on Interior and Insular Affairs, Deepwater Port
Policy Issues 58, 93d Cong., 2d Sess., Ser. No. 93-42 (1974).

1The description of the types of unloading facilities have assumed
oil would be piped onshore for storage. However, it is possible that the
storage facilities could be located offshore. Should this be the case,
oil could eventually reach shore either through pipelines, barges, or
smaller ships.
12
2For specific discussion of these potential impacts and available
means of local control, see Section I, Offshore Oil and Gas Development.

P3earman and Stafford, supra note 1, at 83-84.
14
4U.S. Department of Commerce, Deepwater Ports Project Office,
Analysis of the Risk of Damage to the States of Florida and Texas from
the Seadock, Inc. Proposed Deepwater Port, 12 (March 25, 1976).
[hereinafter cited as Seadock Analysis].

P5earman and Stafford, supra note 1, at 194.

16U.S. Department of Commerce, Deepwater Ports Project Office, Analysis
of the Risk of Damage to the States of Florida and Louisiana from the
LOOP, Inc. Proposed Deepwater Port, 9, 24-27 (March 25, 1978). [hereinafter
cited as LOOP Analysis].

17Seadock Analysis at C-1.

18LOOP Analysis at 9, 24-27

19
Id.
20
2Carter, Amoco Cody Incident Points Up the Elusive Goal of Tanker Safety,
200 Science 514 (1978).







21
As defined in the Convention on the Territorial Sea and the Contiguous
Zone, Geneva, April 29, 1958.
2233 U.S.C. 1501 et seq. (1974).

23
43 U.S.C. 1301-1315 (1953).
24
233 U.S.C. 1502(1) and 33 U.S.C. 1508 (1974).

25
25See notes 12 and 13, supra.

26Fla. Stat. 376.06(1) (1977).

27Fla. Stat. 376.12(1) (1977).
281d.

2933 U.S.C. 1161 et seq. 1161(f)(1).

3033 U.S.C. 1161 et seq.
3133 U.S.C. 1251-1376.

32Askew v. Americal Waterways Operators, 411 U.S. 325 (1973).

33Fla. Stat. 376.19 (1977).

34Id.

35Fla. Stat. 403.182(6) (1977).

3Fla. Admin. Code 22F-2.19.

3733 U.S.C. 1221 et seq. (1972).

3833 U.S.C. 1331(3)(iii).
39
3Ray v. Atlantic Richfield Company and Seatrain Lines, Inc., 435 U.S.
151, 174 (1978).

401d. at 174.

411d. at 163.

4233 U.S.C. 1161 et seq.

4333 U.S.C. 1161(e)(1).

4433 U.S.C. 1161(o)().
33 U.S.C. 1161(o)(2).
4633 U.S.C. 1161(o)(3).

47 e
Fla. Stat. 376.011 et seq. (1977).










4The Supreme Court has held that these provisions of the Florida act
do not conflict with the federal act, so there is no preemption. Askew v.
American Waterways Operators, 411 U.S. 325 (1973).

49Fla. Stat. 376.19 (1977).

50Askew v. American Waterways Operators, 411 U.S. 325, 327 (1973).

5133 U.S.C. 1161(o)(2).

52
5Stipulation of Settlement and Voluntary Dismissal of Askew v. Coleman,
Item 9, letter from Attorney General Shevin to Secretary of Transportation
Coleman, December 9, 1976.

5346 U.S.C. 181-189.

54Id. at 189.

55Amount can't exceed $100.00 per gross ton of such vessel, or $14,000,000,
whichever is less. 33 U.S.C. 1161(f)(1). Askew v. American Waterways
Operators, 411 U.S. 325, 332 (1973).

5Askew v. American Waterways Operators, 411 U.S. 325,327 (1973).








III. OFFSHORE POWER PLANTS

A. Introduction

Three major types of offshore electrical generating activity will be

addressed floating conventional power plants, floating nuclear power

plants, and ocean thermal energy conversion (OTEC). Section B will

describe the elements which would compromise each of these generating

systems. Section C then analyzes the legal methodologies available for

local governments to exercise control over those activities.


B. Activities

1. Floating Power Plants

As with oil and gas development, the basic activities associated with

offshore power generating systems include offshore structures, undersea

transmission cables, and onshore support and service facilities.


Floating Power Plant Structure

A floating power plant would generally be located atop a barge-like

platform which would float inside a protective breakwater. The breakwater

must be designed to withstand both hurricane force winds and storm surges,

and collisions with ships. Different types of breakwater designs exist,

including perforated concrete caissons and rubble mounds supported by

concrete dolos. The entire structural system would occupy about 100

acres of sea bottom. To keep the cost of construction of the breakwater

to a reasonable level, the maximum sea depth should be 70 feet. It

is estimated that the effect of the breakwater on current patterns

should not be important beyond about one mile from shore. There should

not be an observable effect on the shoreline if the plant is located more

than two miles offshore.2 Additionally, it has been estimated that

there should be no detectable shoreline changes directly attributable




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