Title: Journal of Land Use and Environmental Law: Environmental Regulatory Streamlining: A State Perspective
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 Material Information
Title: Journal of Land Use and Environmental Law: Environmental Regulatory Streamlining: A State Perspective
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Language: English
Publisher: J. Land Use & Envtl. L.
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Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Journal of Land Use and Environmental Law: Environmental Regulatory Streamlining: A State Perspective, Volume 2, No. 1, Spring 1986
General Note: Box 7, Folder 1 ( Vail Conference 1987 - 1987 ), Item 96
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Volume ID: VID00001
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JOURNAL OF LAND USE AND ENVIRONMENTAL LAW

VOLUME 2 SPRING 1986 NUMBER 1


ENVIRONMENTAL REGULATORY STREAMLINING:
A STATE PERSPECTIVE
JOSEPH W. LANDERS, JR.t, RICHARD LOTSPEICHtt, NEAL
OsIAsoNttt

A seemingly insoluble maze of governmental regulation lies be-
tween concept and construction for the Florida developer. Permits,
licenses, and other forms of authorization are required by local, re-
gional, state, and federal government agencies. Often the review
processes of the various agencies require analysis of the same or
similar standards. This overlap and duplication is generally unnec-
essary and results in additional direct and indirect costs to the tax-
payer. Direct costs, such as paying for government employees
whose review functions are duplicative, are the more obvious. Indi-
rect costs include delays and added expenses for developers. These
expenses are eventually passed on to the home buyer in residential
development or the consumer in commercial and industrial devel-
opment. This article will be restricted to one facet of this prob-
lem-the duplication and overlap present in Florida's environmen-
tal regulatory process.
Currently, there are three principal state agencies which, by
statutory mandate, must consider the impacts of proposed con-
struction on the environmental resources of the state: the Depart-
ment of Environmental Regulation (DER), the Department of
Natural Resources (DNR), and the Department of Community Af-
fairs (DCA). In addition, five water management districts exercise

t Partner, Landers, Parsons and Uhlfelder, Tallahassee, Florida. B.A. 1964, Stetson Uni-
versity; J.D. 1970, Stetson University. Mr. Landers served from 1974-1975 as the Executive
Director of the Florida Board of Trustees of the Internal Improvement Trust Fund, from
1975 to 1979 as the Secretary of the Florida Department of Environmental Regulation, and
from January to September of 1979 as the Interim Executive Director of the Florida De-
partment of Natural Resources.
tt Law Clerk, Landers, Parsons and Uhlfelder, Tallahassee, Florida. B.S. 1972, Univer-
sity of Cincinnati; M.S. 1975, Southeastern Massachusetts University; J.D. 1986, Florida
State University, College of Law.
ttt J.D. candidate, Florida State University College of Law. Acknowledgement to Lee
Osiason, B.A. 1978, Tulane University; J.D. 1980, University of Florida; LL.M. 1982, New
York University.









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J. LAND USE & ENVTL. L.


authority over activities which may have potential environmental
impacts on waters of a particular district. Other state agencies,
such as the Game and Fresh Water Fish Commission and the De-
partment of Health and Rehabilitative Services play ancillary roles
but usually are not directly involved in the permitting process.
The current morass of overlap and redundancy evolved from the
early beginnings of the regulatory process. Prior to 1975, the De-
partment of Pollution Control, DNR, and the Trustees of the In-
ternal Improvement Trust Fund actively regulated development.
In addition, the state planning agency, later to become the DCA,
together with the Governor and Cabinet, acting as the Administra-
tion Commission, had a responsibility to plan for growth and de-
velopment within the state. During this period, responsibilities
that would eventually culminate in the state Development of Re-
gional Impact Program were just emerging for the DCA. Water re-
sources of the state were regulated by the water management dis-
tricts. Conflict and duplication of effort was chronic at this early
stage of environmental regulation.
The legislature attempted to eliminate some of this duplication
by passing the Environmental Reorganization Act of 1975' and the
Warren S. Henderson Wetlands Protection Act of 1984.* In spite of
these efforts, considerable problems persist. Lack of certainty
about applicable standards makes it difficult to properly design
and plan a project while duplication and delay increase costs to the
consumer and waste state resources. Streamlining the regulatory
process would result in an equal or greater degree of environmental
protection and make better use of Florida's environmental regula-
tory machinery. Florida's problem and challenge is to improve the
state environmental permitting process to benefit both the public
and private sectors.

I. BACKGROUND
A. The Florida Environmental Land and Water Management
Act of 1972
Prior to the Environmental Reorganization Act of 1975, the
Florida Legislature had enacted the Florida Environmental Land
and Water Management Act of 1972 (Land and Water Manage-

(. 1975 Fla. Law ch. 75-22 (codified at FLA STAT ) 403.801.8171 (1945))
2. 1984 Fla. Laws ch. 84-79 (cudified at FLA STAT ) 403.91-.9:18 (1985)).


2


[Vol. 2:1





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1986] REGULATORY STREAMLINING 3


ment Act).8 The purposes of this Act were to provide for the plan-
ning of growth and development within the state, "to protect the
natural resources and environment of the state as provided in 7,
art. II of the State Constitution, insure a water management sys-
tem that will reverse the deterioration of water quality, and pro-
vide optimum utilization of our limited water resources ."'
As a means of accomplishing these purposes, the Land and
Water Management Act established the development of regional
impact (DRI) review process.' This process subjects developments
which are anticipated to have a substantial effect upon the health,
safety, or welfare of citizens of more than one county to an intense
review by the regional planning agency, the DCA, and the applica-
ble local government.' The end result is the issuance or denial of a
development order by the local government based on the recom-
mendations of the particular regional planning council.7 In making
its recommendations, the regional planning council identifies re-
gional issues based upon certain enumerated criteria.' Among
these criteria is the extent to which the "development will have a
favorable or unfavorable impact on the environment and natural
resources of the region.'" This provision is the sole basis for the
regional planning council, as well as the DCA, to review the im-
pacts a project might have on water quality and natural
resources.'1

B. Florida Water Resources Act of 1972

In the same year that the Florida Legislature addressed the
state's land development problems through the Land and Water
Management Act, it also passed the Florida Water Resources Act
of 1972 (Water Resources Act)." The declared policy of the legisla-
ture in passing this Act was "to provide for the management of

3. 1972 Fla. Laws ch. 72-317 (codified at FLA. STAT. 380.012-.12 (1985)).
4. FLA STAT. i 380.021 (1985); FLA. CONST. art. II, i 7 establishes a state policy of conser-
vation and protection of the state's natural resources and scenic beauty via the abatement of
air and water pollution as well as excessive noise.
6. FLA STAT. 380.06 (1985).
6. FLA STAr. i 380.06(1) (1985).
7. FLA. STAT. 380.06(15) (1985).
8. FLA STAT. 380.06(12) (1985).
9. FLA. STAT. 380.06(12)(a) I (1985) (emphasis added).
10. Although the DRI process has been substantially amended since the article was writ-
ten. see A. Frith, Florida's Development of Regional Impact Process, Practice, and Proce-
dure. I J. Land Use & Envtl. L. 71 (1985), for an overview of DRI standards and procedures.
11. 1972 Fla. Laws ch. 72-299 (codified at FLA STAT 1 373.013 (1985)).












4 J. LAND USE & ENVTL L. (Vol. 2:1


water and related land resources; to promote the conservation of
surface and ground water;. preserve natural resources, fish and
wildlife. .. "" To help accomplish these goals, the Water Re-
sources Act created six water management districts each controlled
by a nine-member board appointed by the Governor." In 1977,
these six were reorganized into five districts'". Powers of the gov-
erning boards include: (1) the authority to prescribe the manner in
which private persons may make use of the works"' of the dis-
trict;" and (2) the authority to require permits for construction
that involves the management and storage of surface waters to as-
sure that such construction will not be harmful to the water re-
sources of the district." Four of the five districts now have rules
which regulate the use of works of the district" and the manage-
ment and storage of surface water." Though the Act created the
water management districts, the ultimate responsibility for admin-
istration of chapter 373 has been placed in DER."

C. The Environmental Reorganization Act of 1975
Florida's first real attempt to improve the efficiency of the envi-
ronmental permitting process was the Environmental Reorganiza-
tion Act of 1975." The Act restructured the state environmental
agencies, abolished the Trustees of the Internal Improvement
Trust Fund and transferred its land management functions to
DNR.'O The Trustee's regulatory responsibilities over "navigable
waters" were combined with the water pollution control responsi-
bilities of the Department of Pollution Control." These combined

12. FLA STAT. 373.016(2) (1985).
13. FLA STAT. I 373.069, 373.073 (1985).
13.1 1976 FLA LAWS ch. 76-243 (codified at FLA STAT. 373.069 (1985)).
13.2 The works of a water management district are defined as "those projects and works,
including but not limited to, structures, impoundments, wells, streams, and other water.
course, together with the appurtenant facilities and accompanying lands which have been
officially adopted by the governing board of the district as works of the district." FLA STAT.
I 373.019(15) (1985).
14. FLA STAT. 373.085 (1985).
15. FLA STAT j 373.413 (1985).
16. FLA ADMIN CODE R 40A-6 (1980) (Northwest Florida Water Management District),
40C.6 (1977) (St. Johns River Water Management District), 40D-6 (readopted 1974) (South-
west Florida Water Management District), 40E-6 (1981) (South Florida Water Management
District).
17. FLA ADMIN CODE R 40A-4 11980), 40C-4 (1981), 40D-4 (1974), 40E-4 (1981).
18. FLA STAT j 373.016(3) (1985).
19. 1975 Fla. Laws ch. 75-22 (codified at FLA STAT $ 403.801 (1985)).
20. Id at 15.
21. Id at I 12.



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1986] REGULATORY STREAMLINING 5


responsibilities were transferred to a newly created agency, DER."
The Bureau of Water Res6urces Management was transferred from
DNR to DER," and the public drinking water responsibilities of
the Bureau of Sanitary Engineering were transferred from the De-
partment of Health and Rehabilitative Services to DER." In addi-
tion to complete jurisdiction over water management, DER ab-
sorbed the other responsibilities of the Department of Pollution
Control, including air quality, solid waste, and noise abatement
management."
The 1975 Act also established the Environmental Regulation
Commission." The commission's responsibility is to adopt rules
containing standards for all matters regulated by DER and to hear
appeals from the Department's final orders issued pursuant to
chapter 403, Florida Statutes."
From a functional standpoint, the purpose of the reorganization
was to pinpoint responsibility, to put all water-related activities to-
gether, water quality, quantity, and drinking water, and to make
DER the primary state environmental regulatory agency.
More than a decade has passed since the Environmental Reor-
ganization Act. The question now is whether legislative intent has
become an administrative reality.

D. The Warren S. Henderson Wetlands Protection Act of 1984
DER's dredge and fill permitting authority, previously found in
chapters 253 and 403, Florida Statutes, was consolidated in chap-
ter 403 by the Warren S. Henderson Wetlands Protection Act
(Wetlands Act)." Prior to the Wetlands Act, DER had the author-
ity to review the impact of dredge and fill activities on water qual-
ity in water as defined in chapter 403." Under chapter 403, how-

22. Id. at 4.
23. Id. at 11.
24. Id. at 9.
26. Id. at 8.
26. Id. at 4(7).
27. Id. at 6.
28. FA. STAT. 5| 253.123, 403.061, 403.087, 403.088, 403.813 (1983); FLA. STAT. 5 403.91
(1985); FLA. ADIN. COD R. 17-4.28 (1984).
29. FLa. STAT. 1 403.031(3) (1983) defined "waters" to include, but not be limited to:
rivers, lakes, stream, springs, impoundments, and all other water or bodies of water, in-
cluding fresh, brackish, saline, tidal, surface or underground. Waters owned entirely by one
person other than the state are included only in regard to possible discharge on other prop-
erty or water. Underground waters include, but are not limited to, all underground waters
passing through pores of rock or soils or flowing through in channels, whether man-made or
natural.



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J. LAND USE & ENVTL. L.


ever, DER could not consider, in non-navigable waters, or above
the ordinary high water line of navigable waters, the impact of
those activities on biological resources. If the project was to be con-
structed in navigable water, DER could consider, inter alia, the im-
pact of the project on "the conservation of fish, marine, and other
wildlife or other natural resources" pursuant to sections
253.123(3)(d) and 253.124(2) Florida Statutes.'
Under the Wetlands Act, projects being constructed within
DER's dredge and fill permitting jurisdiction are subject to the
same criteria for review regardless of whether the waters involved
are navigable or non-navigable." These criteria include both the
water quality impacts of the project, as well as the impacts of the
project on fish and wildlife."
Another benefit of the Wetlands Act was to eliminate the bifur-
cated appeals process which had developed as a result of DER's
dual permitting authority under chapters 253 and 403. Prior to the
Wetlands Act, appeals from DER's final agency action, involving
chapter 403 water quality issues, had to be taken to a district court
of appeal pursuant to the Administrative Procedures Act." How-
ever, if the project involved navigable waters and impacted on nat-
ural resources, the appeal was to the Governor and Cabinet sitting
as the Trustees of the Internal Improvement Trust Fund." A pro-
ject involving both issues would have to be taken to both appellate
bodies. Now all appeals from DER final actions may be reviewed
by the district courts of appeal."

II. SPECIFIC AREAS OF OVERLAP AND DUPLICATION

Regulation of construction activities falls into four broad catego-
ries: environmental permitting, state lands management, land use
planning, and water management. As a result, several different
agencies may end up reviewing the same project for the same po-
tential environmental impacts with the possibility of arriving at
different conclusions.

30 FLA. ADIN. CODE R. 17-4.29 (1984).
31. FLA. STAT. 1 403.913 (1985).
32. FLA STAT. 1 403.918 (1985).
33. FLX STAT.I 120.68 (1985).
34. FLA STAT. I 263.76 (1983), repeated by 1984 Fla. Laws ch. 84-79.
35. FLA STAT. 1 403.925 (1985).


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1986] REGULATORY STREAMLINING 7


A. Environmental Permitting

DER regulates a multitude of activities which have the potential
for causing air and water pollution. The most serious problems of
duplication arise from applications for dredge and fill permits,"
and permits for the construction of stormwater discharge
facilities."
The DER dredge and fill permit review process is primarily con-
cerned with two issues: (1) the impact of the project on water qual-
ity, and (2) the impact of the project on biological resources. An
applicant for a dredge and fill permit must meet two standards
under the Wetlands Act. First, he must provide reasonable assur-
ances that water quality standards will not be violated as a result
of the project." Second, he must provide reasonable assurances
that the project is not contrary to the public interest." If the pro-
ject is in Outstanding Florida Waters, the applicant must provide
reasonable assurance that the project will be clearly in the public
interest."4 In determining whether a project is contrary to the pub-
lic interest, DER must consider and balance seven criteria includ-
ing whether the project will adversely affect: (1) the conservation
of fish and wildlife, including endangered or threatened species, or
their habitats, and (2) the fishing or recreational values or marine
productivity in the vicinity of the project."
In practice, a member of the DER dredge and fill permitting
staff conducts an on-site inspection and prepares an application
appraisal in which the impacts of the project are described. Subse-
quently, a recommendation for issuance or denial of the permit is
made. At that point, a supervisory staff member will review those
recommendations and make a decision to propose issuance or de-
nial of the permit. The ultimate responsibility for issuing or deny-
ing the permit lies with the secretary of DER."'
In addition to the permitting requirements, the legislature by
statute, and DER by rule, have provided for the exemption of cer-
tain types of dredging and filling activities based presumably on

36. FLA ADMIN. CODE R. 17-4, 17-12 (1984).
37. FLA. ADMIN. CODB R. 17-25 (1984).
38. FLA. STAT. ( 403.918(1) (1985).
39. FLA. STAT. 5 403.918(2) (1985).
40. FLA. STAT. I 403.918(2)(a) (1985). Outstanding Florida Waters as described in FLA.
STAT. 403.061(27)(a) are water bodies designated by Fla. Admin. Code R. 17-3.041 (1985)
as those worthy of special protection because of their natural attributes.
41. FLA STAT 403.918(2)(a) (1985).
42. FLA STAT 403.805 (1985).


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J. LAND USE & ENVTL. L.


[Vol. 2:1


the de minimis impact of those types of activities on water quality
and biological resources For example, where the water body is
not an Outstanding Florida Water, no permit is required for the
construction of a private dock with a surface area of 1,000 square
feet or 0le.." The construction of seawalls is also exempt where
such construction is between and adjoins at both ends existing sea-
walls or riprap, and is no more than 150 feet in length." However,
just because a project is exempt from DER permit requirements
does not mean that it is exempt from review by other agencies.
DER regulates the construction of stormwater discharge facili-
ties under Florida Administrative Code Rule 17-25. A construction
permit may be issued to an applicant only if the applicant provides
DER with reasonable assurances that the construction and opera-
tion of the facility will not violate water quality standards." DER
also provides exemptions and general permits for facilities that
meet certain specifications.4" These exemptions and general per-
mits, as with the dredge and fill exemptions, are based upon the
presumed minimal impact anticipated from these stormwater dis-
charge facilities. Like the dredge and fill exemptions, an exemption
under the stormwater rule does not preclude review of the
stormwater impacts of the project by other agencies.
Once the developer has satisfied DER that his project will not
violate water quality standards and will not impact biological re-
sources to any significant extent, he often will have to face further
review of these same aspects of the project by DNR, DCA, and the
appropriate regional planning council and water management
district.
Because waterfront developments requiring permits from DER
will generally involve some encroachment onto submerged lands,
we next consider the role of the DNR in the regulation of develop-
ment activities.

B. State Lands Management
1. Sovereignty Submerged Lands
Pursuant to the 1975 Environmental Reorganization Act, DNR
absorbed the land management functions of the Trustees of the

43. FLA. STAT. 403.813(2) (19S6); FLA. AonuM. CODo R 17-4.04(9) (1984).
44. FLA. STAT. 403.813(2)(b)(1) (1985); FLA. ADIN. COD R. 17-4.04(9)(c) (1984).
48. FLA. AOIN Coos R. 17-4.04(9)(r) (1984).
46. FLA. ADMI. CODs R 17-25.04(4) (1984).
47. FLA. ADMIN. CODS R 17-25.03 (1984), 17-25.035 (1984).



.5- d


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1986] REGULATORY STREAMLINING 9


Internal Improvement Trust Fund (Trustees), which included the
management of state-owned submerged lands and uplands.4 This
resulted in a splitting of functions that were previously unified in
the Trustees. Prior to reorganization, an applicant for a dredge and
fill permit, dock, marina, or related activity, obtained the required
authorizations from the Governor and Cabinet acting in their sov-
ereign capacity while at the same time exercising their regulatory
responsibilities. After reorganization, one wishing to undertake any
of the regulated activities, in addition to obtaining a permit from
DER, had to receive authorization from DNR if the activity took
place on submerged lands owned by the state. This includes the
vast majority of activities in navigable waters because only a small
percentage of submerged lands around the state are privately
owned.
Prior to the Wetlands Act, a permit for an activity on state-
owned land could not be issued by DER before DNR gave its con-
sent."' This provision was modified by the Wetlands Act which
now allows DER to issue the permit conditioned on subsequent au-
thorization by DNR."
The current area of overlap and repetition arises out of the stat-
utory obligations of DNR and DER to consider the environmental
impacts of a particular project. The role of DER in assessing the
impacts of proposed development on air and water quality and on
biological resources is clear from its statutory authority under
chapter 403, Florida Statutes, and its authority under Title 17 of
the Florida Administrative Code. Less clear however, is the role of
DNR in assessing the environmental impacts of proposed develop-
ment on state lands management.
DNR is responsible for the management of sovereign submerged
lands pursuant to chapter 253, Florida Statutes, and Florida Ad-
ministrative Code Rule 16Q-21. There are two sections in chapter
253 which address the assessment of environmental impacts of pro-
posed conveyances of sovereign submerged lands. Section
253.02(3), Florida Statutes, provides that:

In the event submerged tidal land is to be sold and transferred
the board of trustees shall first require the Department of
Natural Resources to inspect said lands and to file a written re-
port with the board of trustees which report shall state whether

48. 1975. Fla. Laws ch. 75-22 15 (codified at FLA STAT. 20.25 (1975)).
49. FLA. STAT. 253.77 (1983).
50. Fla. Laws ch. 84-79, 12 (codified at FLA STAT. 253.77 (1985)).


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10 J. LAND USE & ENVTL. L. [Vol. 2:1


or not the development of said lands would be detrimental to
established conservation practices. (emphasis added).

Section 253.12(2)(a), Florida Statutes, provides that:

The Board of Trustees ... may ... convey such ... submerged
land if determined to be in the public interest. .... However,
prior to consummating any such sale, the Board shall determine
S to what extent the sale of such ... lands... would interfere with
the conservation of fish, marine and other wildlife, or other nat-
ural resources ... (emphasis added).

These statutes address only sales of submerged sovereign land.
There is no corresponding statutory authority which allows DNR
to consider the environmental impacts of any other use (for exam-
ple, a lease) of submerged sovereign lands. Yet DNR has adopted
rules which allow it to consider such impacts that might result
from any use of submerged sovereign lands." Relevant portions of
those rules are that:

(1) All sovereignty lands ... shall be managed primarily for main-
tenance of essentially natural conditions, propagation of fish and
wildlife .;6
(2) Activities which would result in significant adverse impacts on
sovereignty lands and associated resources shall not be
approved;"
(3) Activities shall be designed to minimize or eliminate any cut-
ting, removal, or destruction of wetland vegetation ... on sover-
eignty lands;" and
(4) Activities on sovereignty lands shall be designed to minimize
or eliminate adverse impacts to fish and wildlife habitat. Special
attention and consideration shall be given to endangered and
threatened species habitat."

These statutory provisions and rules give DNR broad authority
to consider the impact of any proposed conveyance or use of sover-
eign submerged lands on the environment. Therefore, an applicant
who has complied with all DER rules and requirements, neverthe-
less may face the task of convincing DNR that his project will not

61. FLA. ADMIN CODE R. 16Q.21.04 (1985).
62. Id. at (2)(a).
53. Id. at (2)(b).
54. Id at (2)(d).
65. Id. at (2)(i).











1986] REGULATORY STREAMLINING 11


adversely impact the water quality and biological resources of the
area.
DNR has provided, by rule, that the DER biological assessments
"may be considered in evaluating" requests to use sovereign
lands." However, DER biological assessments are not binding on
DNR. In fact, DNR staff in some instances have disputed the find-
ings of the DER assessment.
It also is significant to note that both agencies require a public
interest determination before the appropriate authorizations can
be issued. In the case of a DER permit, the applicant must show
that the project is not contrary to the public interest, and if the
project is in an Outstanding Florida Water, the applicant must
demonstrate that the project is clearly in the public interest.'7 In
order for the Trustees to authorize a sale of submerged sovereign
land, they must determine that the conveyance is "in the public
interest."" If the applicant seeks a lease or some other use of the
submerged land, then he only needs to show that the project is not
contrary to public interest." A consequence of this dual public in-
terest test is that a review of the same project by the two agencies
can result in a determination by one that a project is in the public
interest (or at least not contrary to the public interest) and a de-
termination by the other that the project is not in the public inter-
est (or perhaps even contrary to the public interest). Many an ap-
plicant has been left totally confused and frustrated by such
inconsistency.

2. Aquatic Preserves Management
In addition to its authority under chapter 253, Florida Statutes,
DNR also is charged with managing the state's aquatic preserves."0
The legislative intent is expressly stated: "[that] state-owned sub-
merged lands in areas which have exceptional biological. value
be set aside forever as aquatic preserves for the benefit of
future generations."'" Except for vague language referring to the
need for a conveyance to be in the "public interest,'" there is no
specific language in chapter 253 which addresses DNR's authority

56. Id. at (2)(c).
57. FLA. STAT. 1 403.918(2) (1985).
58. FLA. STAT. I 253.12(2)(a) (1985).
59. FLAADMIN. CODE R 16Q-21.04(l)(a) (1985).
60. FLA. STAT. J 258.35-258.46 (1985).
61. FLA STAT 258.36 (1985).
62. FLA. STAT 5 258.42(2) (1985).


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J. LAND USE & ENVTL. L.


to evaluate the impact of a conveyance or use of submerged land in
an aquatic preserve on biological resources.
From this statutory basis, the aquatic preserve Rule 16Q-20,
states that "all sovereignty lands within a preserve shall be man-
aged primarily for the maintenance of essentially natural condi-
tions ." The rule also provides that the preserves shall be
administered and managed to encourage the protection, enhance-
ment, or restoration of the biological values of the preserves." The
rule further states that the preserves shall be managed to protect
indigenous life forms and habitats." Where a DER permit is re-
quired for activities on sovereignty lands in an aquatic preserve,
DNR is to coordinate with DER. DNR has provided, by rule, that
the DER biological assessment is to be considered by DNR in
making its staff recommendations to the Trustees."
For those projects in aquatic preserves, in addition to the DER
site assessment, the DNR Bureau of Environmental Land Manage-
ment routinely does its own site inspection to assess the environ-
mental impacts of a project on the aquatic preserve. This is one of
the clearest areas of duplication. When the outcome of the two site
inspections is the same, all that is accomplished is a wasting of
time and money. When the outcome is different, i.e., one recom-
mendation for issuance and the other for denial, the applicant is
again left confused and frustrated and generally facing substantial
economic loss from delays caused by trying to reconcile the contra-
dictory recommendations.
To demonstrate how this situation can arise, consider the follow-
ing scenario based on an actual case. A developer in a south Flor-
ida county applied for a dredge and fill permit and a lease to use
state lands to construct a 22-slip boat dock as an amenity to up-
land condominiums. The location was in a portion of the Indian
River, designated as an aquatic preserve. DER conducted a site in-
spection and determined that construction of the project would
impact only a very small portion of the local biological community
and that long-term water quality impacts would be minimal. DER
notified the developer of its intent to issue the permit subject to
final approval for use of state sovereign lands from DNR. The
DNR Bureau of Environmental Land Management originally rec-
ommended denial of the application unless the project was demon-

63. FLA. ADMIN. CODs R. 16Q-20.01(1) (1985).
64. Id. at 3(e).
65. Id. at 3(f).
66. FLA. ADMIN. CODE R. 16Q-20.16 (1985).


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1986) REGULATORY STREAMLINING 13


strated to be in the public interest.
The project was modified to satisfy the Bureau of Environmen-
tal Land Management. However, another DNR bureau, the Bureau
of State Lands Management still recommended denial of the sub-
merged land lease because the applicant had not shown that the
project was "in the public interest" as required under section
253.12(2)(a) Florida Statutes. DER found that the project, as mod-
ified, would not violate state water quality standards. Furthermore,
because the project was in an Outstanding Florida Water, DER de-
termined that the project was clearly in the public interest. DNR's
judgment of public interest factors prevailed. Even though DER
issued its permit, the Governor and Cabinet denied the lease appli-
cation based on DNR staff recommendations."
To justify this dual review process, DNR has argued that DER
had no specific authority to consider the impacts of a project af-
fecting threatened or endangered species. The legislature has now
given DER that specific authority under the Wetlands Act." In
evaluating the public interests of a dredge and fill project, DER is
now to consider "whether the project will adversely affect the con-
servation of fish and wildlife, including endangered or threatened
species, or their habitat."9 In addition, as justification for its ex-
panding role, DNR cites its general proprietary authority as a
landowner which it claims is separate and apart from its regulatory
authority.'7
Another area of direct duplication of permit application review
is in assessing the impacts of a project upon water quality in an
aquatic preserve. DER is the only state agency delegated responsi-
bility for regulating water pollution. However, the DNR Bureau of
Environmental Land Management can recommend denial of a
lease for state lands in an aquatic preserve if they find impacts on
water quality to be in conflict with the public interest.71
DNR, in association with application for submerged land leases,
has even requested applicants to supply plans for stormwater dis-

67. See "Florida's Environmental Permitting Process: A Review with Recommenda-
tions," compiled by the Florida Defenders of the Environment, Inc. (1985).
68. FLA. STAT. 5 403.912 (1985).
69. FLA. STAT. I 403.918(2)(a)(2) (1985) (emphasis added).
70. See Graham v. Edwards, 472 So. 2d 803 (Fla. 3d DCA 1985) involving a dispute as to
whether a dock which is exempt from DER permitting requirements is still subject to DNR
submerged land lease requirements. The court found that the use of the word "permit" in
FLA. STAT. 403.813(2)(b) (1983) refers to an exemption from the state's regulatory func-
tions only and does not refer to an exemption from the state's proprietary powers.
71. FLA. STAT. 5 258.42(1) (1985).


IL rlk JI .~ r




M


14 J. LAND USE & ENVTL. L. [Vol. 2:1


charge facilities which are to be constructed on the applicant's up-
land property. Unless the authority is otherwise delegated to a
water management district, DER is the sole agency responsible for
regulating the construction of *tormwater discharge facilities."
DNR has neither the manpower nor the expertise to review plans
for stormwater discharge facilities. Once the applicant has satisfied
DER that his stormwater discharge facility will not violate state
water quality standards, there is no rational basis for DNR staff to
conduct additional review. Although DNR is not likely to deny use
of state lands based on water quality issues alone, there is duplica-
tion of site inspection, water quality review, and biological assess-
ments in aquatic preserves.

3. Mining Reclamation
As part of its responsibility for overseeing the administration
and management of state lands, DNR is charged with the develop-
ment and enforcement of criteria for site reclamation of land
mined for solid minerals. DNR's authority over the reclamation of
mined lands derives from part II of chapter 211 of the Florida
Statutes enacted in 1971." The Act established a tax on the sever-
ance of solid minerals from the soils or waters of the state. It also
provided for tax credits and refunds to the taxpayers who reclaim
the land disturbed by the mining."
In 1975, the Florida Legislature amended chapter 211. All lands
mined after July 1, 1975, became subject to the severance tax and
mandatory reclamation." As a result of the 1975 amendments,
DNR promulgated Florida Administrative Code Rule 16C-16
which governs the reclamation of mining sites. The requirements
of Rule 16C-16 are based on the standards set forth in section
211.32(1)(a) of the Florida Statutes. According to these rules, a
reclamation program must meet standards that include: (1) control
of the physical and chemical quality of the water draining from the
area of operation; (2) soil stabilization including contouring and
vegetation; (3) elimination of health and safety hazards; (4) conser-
vation and preservation of remaining natural resources; and (5) es-
tablishment of a time schedule for completing various phases of
the program.

72. FLA. STAT.. 403.812 (1985).
73. FLA. STAT. 5 211.32 (1985) (originally enacted in part by 1971. Fla. Laws ch. 71-105).
74. FiA. STAT. I 211.32(1)(d) (1985).
75. 1975 Fla. Laws ch. 75-40 (codified at FLA. STAT. 211.32 (1985)).










1986] REGULATORY STREAMLINING 15


In 198~ substantive amendments were made to Rule 16C-16.
The'amenbi~eohts ~eiaire each operator to file a conceptual plan
Sfor reelanition for thezentire mtnei?' The amendments also require
that the Operator Wfilwnnual applications for reclamation prior to
mining foU ll mining the operator plans to undertake during the
upcoming ydar." -AM annual report describing what lands were
mined in the previbw-ryar and the status of reclamation is also to
be fild." The 1980Samendments require radiation monitoring and
the restoration of we~tmads'and drainage patterns. New revegeta-
tion standards inclu)idpoa ts, trees, and other appropriate vegeta-
tion not previously required."
Each mine subject to the severance tax must have an approved
conceptual plan which must be filed six months prior to beginning
mining operations." The plan must provide an overview of the en-
tire mine with resped to pre-minrng and post-mining conditions,
such as topography, drafiage, and'vegetation." It must also pro-
vide information on w d disposal and the amount and status of
nonmendator lands (ln. ot required to be reclaimed) within
Sthe iniie." The conceptil pa should provide sufficient informa-
tion to allow long-range lAiIng of reclamation activities.
Phosphate mining iHnv6ves numerous activities which have the
potential to pollute" state wkterp and impact biological resources.
Accordingly, a tmul tud o D'ER permits may be required for the
construction ahd perition of the mine and its associated process-
ing facilities. This creates yet another area of unnecessary overlap
with DNR. For example, phosphate companies planning to mine in
state waters miy be required to obtain dredge and fill permits
from DER. To obtain DEit approval for the various dredging and.
filling activities~'uithin its jurisdiction, some form of restoration of
the original biological, ecological, hydrological, and water quality
functions. my e r4ulred.
In additId- to the review of mining reclamation by DNR and
SD ER pncstial.reclamation plans are reviewed by DCA and the
regional plai~rig haeill as part of the DRI process.3 Florida Ad-

76. FLA. ADMIN. Cons R 16C-16.041 (1980).
77. FLA. ADIN. CODE R. 16C-16.032 (amended 1981).
78. FLA. ADMIN. Cops R 16C-IF.091 (1980).
79. FLA ADMIN Cob R. 16C4&051 (amended 1981).
80. FLA. A MHN'CODl R 16C-i6041(3) (1980).
81. FLA ADMI. CoDB R 16C-16.041(2) (1980).
82. Id.
83. FLA. ADMIN. CODn R 27F-2.06 (1985).












16 J. LAND USE & ENVTL. L. (Vol. 2:1


ministrative Code Rule 27F-2, names mining as one of twelve types
of development presumed to have a regional impact. DRI review is
concerned primarily with the impacts of the mining on the envi-
ronment and natural resources of the region. Specific environmen-
tal issues commonly addressed include mining of streams and wet-
lands, groundwater impacts, waste clay settling areas, threatened
and endangered species, air quality, and reclamation.4
Mining reclamation may be subject to review by the same three
state agencies already engaged in redundant regulation of other re-
sources. A mining company must obtain approval of its reclama-
tion plan from DNR, obtain dredge and fill permits from DER
which, as a condition for issuance, may require some degree of res-
toration of the mining site. Further, the company must secure a
favorable report and recommendation from the regional planning
council for its reclamation plan as well as local government ap-
proval. At any stage, one agency may place conditions on the min-
ing and reclamation plan which directly conflict with the require-
ments of the other two agencies. Consequently, a mining company,
having satisfied one agency, may be faced with differing and con-
flicting requirements imposed by other agencies.

4. Coastal Construction
Pursuant to chapter 161 of the Florida Statutes, the Beach and
Shore Preservation Act, DNR exerts considerable regulatory re-
sponsibility over Florida's sandy beaches. The Governor and Cabi-
net, sitting as the head of DNR, establish a coastal construction
control line for each county." It is then necessary to obtain per-
mits from DNR for any activities taking place seaward of that con-
trol line." This includes the construction of houses, apartment
buildings, condominiums, hotels, motels, other types of dwellings,
towers, swimming pools, pipelines, piers, elevated beach walkover
structures, structures for beach access, ramps and walkways, stair-
ways, elevated viewing platforms, lifeguard support stands, can-
tilevered decks, fences, subgrade utilities, as well as coastal and
shore protection structures such as seawalls, bulkheads, revetments
and groins." Some of these activities take place on upland, while
some take place in the water. Many of the above listed projects

84. Id.
85. FLA. STAT. 161.053(2) (1985).
86. FLA STAT. 161.053(5) (1985).
87. FLA. ADMIN. CODs R. 16B-33.02(23) (1980).


~-~"r~' -- --


~__ __ __ ____ ~~__ __~ ~___~__ ~~______~











1986] REGULATORY STREAMLINING 17


also require DER permits, because they take place in state waters.
It is not unusual for the two departments to disagree on the
permitability of a particular project.

C. Land Use Planning
Although the DCA is referred to as the state land planning
agency, its role and that of the regional planning council in the
development of regional impact review process is more of a regula-
tor than a planner.
The DCA is the agency responsible for overseeing the DRI pro-
cess. Its statutory authority to consider environmental impact from
proposed development is derived from various sections of chapter
380 of the Florida Statutes. The legislative intent section of the
statute provides that it is necessary to plan for and guide growth
and development for the protection of the natural resources and
environment of the state." The DCA is authorized to adopt rules
to carry out the intent of the act." In addition, the DCA is author-
ized to adopt rules to ensure uniform procedural review of DRI's
by the DCA and regional planning agencies." Florida Administra-
tive Code Rule 9B-16 was adopted to implement these provisions.
After DCA has determined that a project will have regional im-
pacts, the DRI process is initiated by the developer filing an appli-
cation for development approval (ADA) with the appropriate local
government with copies to the regional planning council and
DCA.'1 The regional planning council then reviews the application
to determine whether adequate information has been supplied to
allow it to make its report and recommendations to the local gov-
ernment." When all requested information has been submitted by
the applicant and after a public hearing, the regional planning
council conducts its review of the ADA and submits its report and
recommendation to the local government."
It is the local government's responsibility to render a decision on
an application for development approval." In making its decision,
the local government is to consider criteria which are set out in

88. FLA. STAT. 380.021 (1985).
89. FLA. STAT. 1 380.032(2)(a) (1985).
90. FLA. STAT. I 380.06(2)(a) (1985).
91. FLA. STAT. If 380.06(6), 380.06(10) (1985).
92. FLA. STAT. I 380.06(10)(b) (1985).
93. FLA. STAT. 380.06(12)(a) (1985).
94. FLA. ADMIN. CODs R. 9B-16.25 (1983).


.-. ---1_1












18 J. LAND USE & ENVTL. L. [Vol. 2:1


section 380.06(14), Florida Statutes." One criterion is that devel-
opment be "consistent with thl report and recommendations of
the regional planning agency [which is] submitted [to the local
government] pursuant to (section 380.06(12)].'" Under this sec-
tion, the regional planning agency makes recommendations to the
local government considering, among other things, whether and to
what extent "(t]he development will have a favorable or unfavora-
ble impact on the environment and natural .. resources of the
region."" The DCA and the regional planning councils retain ulti-
mate oversight responsibilities since they may appeal any develop-
ment order issued by a local government."
It is primarily in the regional planning council review and re-
porting process that the duplication arises. Because the regional
planning council must consider the extent to which the develop-
ment will have a favorable or unfavorable impact on the environ-
ment and natural resources of the region, it must request from the
applicant information pertinent to those issues. Often, concurrent
with the DRI review, an applicant will be seeking permits from
DER. Many times the same information which has been requested
by DER will be requested by the regional planning council. How-
ever, based on a review of the identical information, each agency
may reach the opposite conclusion regarding approval of the pro-
ject. If DNR is also involved in reviewing the project because of an
application for a conveyance or use of submerged sovereign lands
and perhaps the existence of an aquatic preserve at the project
site, the possibilities multiply.
Consider the following scenario. A developer proposes a residen-
tial development along a navigable water body located in an
aquatic preserve. As an amenity for the development, the devel-
oper also proposes to construct a docking facility of reasonable
dimensions. This developer would be faced with the following reg-
ulatory hurdles.
1. Minimally, permits from DER would be required for: (a) the
docks, (b) the construction and operation of the stormwater dis-
charge facility for the residential development, and (c) any dredg-
ing and filling associated with the docks and the residential devel-
opment that is within DER's regulatory jurisdiction.
2. A submerged land lease for the docks would be required from

95. FLA. STAT. I 380.06(14)(c) (1985).
96. Id.
97. FLA STAT. f 380.06(12)(a)(1) (1985) (emphasis added).
98. FLA STAT. 380.07(2) (1985).


_ II__ ~Y__I ~iil


415-1 5













1986) REGULATORY STREAMLINING 19


DNR. Other authorizations may also be required depending on the
nature and extent of any proposed dredging and filling.
3. DCA would require the residential development to undergo
the DRI review process if the number of residential units exceeds a
numerical threshold based on the population of the county. The
docking facility would also be subject to the DRI process if the
number of slips exceeds ninety-nine."
DER would review the impacts of the marina and any associated
dredging and filling activities on water quality and biological re-
sources. DER also reviews the design of the proposed stormwater
discharge facility to ensure that water quality standards will not be
violated.
The DNR would consider, in the course of its review, the im-
pacts of the marina and any dredging and filling on biological re-
sources and water quality. It may also consider the impacts of the
stormwater discharge on the water quality of the aquatic preserve.
The regional planning council and DCA would review the impact
of the development on the "environment and natural resources."
As such, they review the impacts of the docks and any dredging
and filling on biological resources and water quality. They also re-
view the stormwater discharge facility to ensure that it does not
have an unfavorable impact on the environment or natural re-
sources of the region.
Regardless of any one agency's determination as to the impacts
of the project, the other agencies may reach different, even com-
pletely contrary conclusions regarding approval of the project.
Suppose that DER, the'agency with primary environmental regula-
tory authority, determines that the project will meet the state's
water quality standards. Neither DNR, nor the regional planning
council is bound by that determination even though neither agency
has the same degree of expertise or trained personnel to scientifi-
cally dispute DER's determination.
Suppose also that DER, after a comprehensive and thorough site
inspection, determines that the project will not adversely affect
any biological resources and in fact will enhance them through an
overall mitigation plan.'" DER accordingly determines that the

99. FLA. ADMIN. CODE R. 27F-2.09 (1985). Under FLA. STAT. I 380.06(2)(d) (1985), the
development may be deemed a DRI even if the number of residential units and docking
alipa are below the presumptive thresholds.
100. Often the minor impacts of a project may be more than compensated for by actions
taken by the applicant, for example, planting vegetation at the site, dedicating private land
as a conservation area, creating wetlands where none existed previously, etc.











20 J. LAND USE & ENVTL. L. [Vol. 2:1


project is not contrary to the public interest, but indeed is in the
public interest. Again, neither DNR nor the regional planning
council is bound by DER's.determination. DNR might still find
that, because of its perception of the adverse impacts of the project
on biological resources and water quality, the submerged land con-
veyance or use should be denied. The regional planning council
could also determine that perceived impacts of the project would
adversely affect biological resources and water quality and subse-
quently recommend to the local government that the ADA be
denied.
For those aspects of a project which do not come under review
by DER, the regional planning council should be allowed to review
and make recommendations regarding the project's impacts on the
environment and natural resources of the region. It is also recog-
nized that DNR may have valid reasons for denying a submerged
land conveyance or use which go beyond the project's impacts on
water quality and biological resources. However, it makes little
sense to allow DNR or the regional planning agency to withhold
their respective approvals where the grounds for withholding that
approval fall within DER's regulatory authority.

D. Water Management
To add to the confusion created by the conflicts between DER,
DNR, and DCA and the regional planning councils, additional per-
mits may be required from the appropriate water management dis-
trict if the project involves construction which impacts the works
of one of the districts or involves construction for the management
and storage ofsurface waters. These works of the district, in most
instances, will be waters over which DER also has regulatory au-
thority. It is also possible that these same waters will involve sub-
merged sovereign lands eliciting input from DNR as well.
The legislature has authorized the water management districts
"to prescribe the manner in which local works provided by other
districts or private persons will connect with and make use of the
works or land of the district, to issue permits therefore, and to can-
cel the permits for non-compliance ."'10 All but the Suwannee
River Water Management District currently have rules for permit-
ting use of the works of the district.0*o Only one district to date
provides criteria for permit issuance that address the impact of a

101. FLA. STAT 1 373.085(1) (1985).
102. Supra note 16 and accompanying text.












1986] REGULATORY STREAMLINING 21


project on water quality or biological resources. In order to be able
to obtain a permit from the South Florida Water Management
District, an applicant mitt provide reasonable assurances that the
proposed use of the works, among other things, does not degrade
the quality of the water body. An applicant must also demonstrate
that the project meets the water quality standards of DER for the
receiving water body.'" In addition, seven other provisions are
found in the South Florida Water Management District rule.'"
Among these is a provision allowing the water management district
to deny permits for projects encroaching upon environmentally
sensitive areas, even though all other criteria are satisfied.s0'
A district may also require permits "to assure that... any dam,
impoundment, reservoir, appurtenant work, or works will not be
harmful to the water resources of the district."'" Three districts
now have rules which address the impacts of such projects on
water quality and biological resources.'7 Again, it is obvious that
there is considerable potential for agency duplication.

III. RECOMMENDATIONS

The environmental regulatory process should act as an inte-
grated system, not a series of isolated independent decisions with
little relevance. Currently, the various agencies charged with envi-
ronmental regulatory powers often exchange comments and infor-
mation regarding applications. Such an exchange, however, does
not effectively resolve the conflicts among agencies.
It is not the purpose of this article to suggest ways to facilitate
ill-advised and poorly planned projects. However, protection of the
environment must be achieved with a view toward the realities of
the public interest and the economic benefits that are derived from
development activities.
The effectiveness and efficiency of Florida's environmental regu-
latory system is hindered by duplication of effort, lack of coordina-
tion, and conflicts in assessments among the agencies. The follow-
ing are recommendations to alleviate some of these problems.

103. FLA. ADMIN CODE R. 40E-6.301(1)(c) (1981).
104. FLA. ADMIN CODE R. 40E-6.301(2) (1981).
105. FLA. ADMIN CODE R. 40E-6.301(2)(d) (1981).
106. FLA. STAT 373.413(1) (1985) (emphasis added).
107. FLA. ADMIN CODE R. 40C-4.301 (1983) (St. Johns River Water Management Dis-
trict). 40D-4.301 (1983) (Southwest Florida Water Management District), 40E-4.301 (1983)
(South Florida Water Management District).


.75-7


m












J. LAND USE & ENVTL. L.


A. Give binding effect to DER determinations regarding water
quality impacts
As noted, there are circumstances which give rise to as many as
five different state or regional agencies reviewing, analyzing, and
making determinations whether to issue or deny approval of a pro-
ject based on its impact on water quality (DER, DNR, DCA, the
regional planning councils, and water management districts). DER
is the agency primarily responsible for making water quality deter-
minations.'" Other agencies, based on broadly worded statutory
authority, have taken it upon themselves to make determinations
regarding water quality impacts. These agencies lack the degree of
expertise and technical staff which exists at DER.
It is recommended that where a project involves review by mul-
tiple state or regional agencies for its impact upon water quality
(whether those impacts result from dredging and filling,
stormwater, or any other type of project for which DER requires a
permit), DER's determination be binding on those other agencies
as to that particular issue. This would prevent any of the other
agencies from withholding their approval solely on water quality
issues which are within DER's purview and would remove a source
of deadlock to the applicant.

B. Give binding effect to DER's determination of the public
interest as it relates to conservation of biological resources
In those situations where DER is reviewing a dredge and fill per-
mit application for projects or portions of projects which are also
subject to submerged sovereign land uses, DRI reviews, or water
management district permits, DER's determination of the biologi-
cal impacts and corresponding public interest factors should be
binding. As previously noted, under the Wetlands Act, DER must
consider and balance seven different criteria to determine whether
a project is contrary to the public interest (or in the public interest
if Outstanding Florida Waters are involved).'" This determination
includes a comprehensive review of all of the potential adverse im-
pacts of a project on the biological resources of the project area.
Neither DNR, DCA, a regional planning council, nor a water man-
agement district should be permitted to withhold approval of the

108. See 1975 Op. Att'y Gen. Fla. 075-16 (January 29, 1975) stating that DER's prede-
cesor agency, the Department of Pollution Control, had primary authority over water qual-
ity issues where a conflict with the water management districts existed.
109. See supra notes 39-41 and accompanying text.


'7s1


[Vol. 2:1












1986] REGULATORY STREAMLINING 23


project based on biological impacts if DER arrives at a favorable
determination after its consideration and balancing of the seven
criteria. DNR, DCA, the regional planning councils, and the water
management districts would still have the power to deny approval
for a project, but such denial would have to be based on other stat-
utory grounds than the impact upon biological resources.

C. DER permitting exemptions should apply to other agencies
As discussed above, section 403.813 of the Florida Statutes, and
certain DER rules exempt specific types of activities from DER's
dredge and fill permitting requirements. These exemptions pre-
sumably are based on the minimal impact these activities have on
water quality and biological resources. If this is indeed the case,
then water quality and biological impacts should be exempt from
review by DNR, DCA, the regional planning councils, and the
water management districts for such activities.

D. Transfer all DNR regulatory functions to DER
Even though DNR's function is to be the manager and proprie-
tor of state lands, this role has expanded to include many regula-
tory functions. Among these are the mining reclamation review and
coastal construction permitting.
Currently, the review of mining reclamation plans is conducted
by DNR's Bureau of Mine Reclamation. Because the scope of re-
view of mine reclamation plans overlaps to a considerable degree
with the permitting responsibilities of DER, much effort and du-
plication could be eliminated by transferring the Bureau of Mine
Reclamation to DER. The various DER permitting staffs, e.g.,
dredge and fill, dam construction, stormwater, and others, could
then provide close coordination throughout the permitting and rec-
lamation plan review procedures. A miner would still have to meet
the statutory requirements of chapter 211, Florida Statutes, but
the confusion, frustration, and added expense of dealing with two
separate agencies would be eliminated.
To further eliminate duplication in the mining reclamation re-
view process, it is also suggested that review of reclamation plans
by DCA and the regional planning councils be curtailed. Any deci-
sion by the Bureau of Mining Reclamation as to the acceptability
of a reclamation plan would be binding on DCA and the regional
planning council.
The Division of Beaches and Shores principally acts in the role

*)


C -


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24 J. LAND USE & ENVTL. L. [Vol. 2:1


of a regulator in setting coastal construction lines, reviewing appli-
cations for coastal construction lines, and reviewing applications
for coastal construction permits. This division should be trans-
ferred to DER. Such a transfer would be consistent with the need
to maintain DER as the primary environmental regulatory agency
while retaining in DNR the management and proprietary responsi-
bilities over state lands.

IV. CONCLUSION
In spite of their various designations as state land managers,
land use planners, and water use managers, DNR, DCA, the re-
gional planning councils, and water management districts often are
required to function as environmental regulatory agencies. As such,
their authority frequently overlaps that of DER. There is no cen-
tral state policy coordinating the environmental review activities of
these agencies. The areas of review and information required for
their respective approvals are duplicative. For the applicant, satis-
faction of the cumulative requirements for issuance of the neces-
sary licenses is a confounding process. As many as five different
state and regional agencies must make similar assessments which
often conflict as to the same impacts of the same activity. Policies
for issuing approvals differ among the agencies. No agency is desig-
nated as the lead agency or has the binding decision. The process
is costly in time and money for the applicant and is not necessarily
the most effective protection for the environment.
The responsibilities of the various agencies have expanded since
their initial creation by the legislature. This growth was not
planned and has been incremental in nature; it was the result of
agencies adopting rules based upon broadly worded statutory au-
thority. As an agency identified an area it felt had inadequate pro-
tection or regulation, the agency would adopt rules to cover it. The
result has been overlapping and illogically acquired agency respon-
sibilities. The ultimate effect is the frustration of the potentially
smooth operation of an effective environmental regulatory process.
The Environmental Reorganization Act of 1975 helped to
streamline the state environmental permitting process. The War-
ren S. Henderson Wetlands Protection Act of 1984 also aided the
efficiency of the process. However, it is clear that substantial
problems remain. These problems are not insoluble. The imple-
mentation of the recommendations presented herein would be a
major step in alleviating the problems. Such implementation will
require legislative action. The potential benefits would be substan-










1986] REGULATORY STREAMLINING 25 I

tial and include:
1. a decrease in the amougpt of agency staff time reviewing im-
pacts of propised'projects, which could result in the elimination of
certain staff positions to assume other non-duplicative
responsibilities;
2. a decrease in the time taken to reach a final determination to
grant or deny permit approval;
3. increased economic benefits for the state which would accrue
as a result of the construction and completion of well-planned, en-
vironmentally sound developments; and
4. increased savings for applicants as a result of the shortened
time frames for review of the environmental impacts of proposed
projects.
No doubt there are other areas in which further streamlining of
*the environmental regulatory process could be accomplished. In
fact, nearly as much duplication exists between federal, state, and
local environmental agencies as exists between the state agencies
described herein.




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