Title: Environmental Efficiency Study Commission Minority Report
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Title: Environmental Efficiency Study Commission Minority Report
Physical Description: Book
Language: English
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Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Environmental Efficiency Study Commission Minority Report
General Note: Box 7, Folder 4 ( Vail Conference 1989 - 1989 ), Item 93
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00000994
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
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ENVIRONMENTAL EFFICIENCY STUDY COMMISSION

REPORT OF THE MINORITY












The members of the Environmental Efficiency Study Commission who
are filing this minority report wish to thank the President of the
Senate, John Vogt, and Speaker of the House, Jon Mills, for their
assistance in the publication and distribution of this report.

David Gluckman, Commission Vice Chairman
Marilyn Crotty, Commission Member
Carol Rist, Commission Member
February 11, 1988











SUMMARY

Except in a few instances, the minority does not object to the
changes recommended in the majority report. Our objections come
more from what is not in the report than what it contains. The first
Report of the Commission recognized major problems in a series of
laws that neither protected the environment nor provided an
efficient and logical system for permit applicants or the general
public. The majority's solutions to these problems is to shift a few
programs and proclaim victory. The position of the minority is
that problems within an environmental system can only be
solved by a cohesive permitting and enforcement system. A
system that does not presently exist in Florida.
The system proposed by the minority contains four state agencies
and five regional adjuncts that are responsible for protecting the
state's natural resources. Each has a separate role and will be
accountable for the resource it is designated to protect. Though
there will still be some unavoidable overlap, the public should be
able to understand the divisions and look to the appropriate agency
for solutions with a minimum of confusion.

SETTING AND HISTORY

Florida is a unique state. It is located at a desert longitude yet
has plenty of fresh water. It's climate ranges from the tropical in
the south to the temperate in the north. Its thousands of miles of
coastlines contain beautiful high energy beaches and low energy
marshes. It has miles of dark, muddy rivers and clear springs and
streams. Its lakes include small crystal circles with sand bottoms
and odd shapes of square miles of grass prairie with little open
water. Florida is a low land with only its central ridge, old beach
lines and mountain washed sediments in the north giving any relief.
Its watery lands and climate have produced habitats for numerous
plants and animals that are found nowhere else in the country. They
provide fish for the table, game for sport and aesthetic enjoyment
for all Floridians.
Unfortunately, all of these resources are under attack. Under
attack from the very beings who seem to derive the most benefits
and pleasures from their existence. Man. We have eroded the beaches,
drained the marshes and filled in the coastal estuaries. We've


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polluted the clear lakes, streams and bays and poisoned the ground
and waters with our chemical residues and urban garbage. We have
even dirtied the air we breathe.
The environmental movement of the late 60's and early 70's was
organized to stem this tide of destruction. One of its first goals was
to urge governmental action to protect the state's resources. In
response to these requests, a series of laws regulating air, water,
solid waste and noise were enacted. Numerous agencies were
involved. In fact, so many were involved that by 1975 a major
reorganization of environmental agencies took place. During the late
70's and early 80's additional responsibilities were assigned to the
same agencies. Drinking water, stormwater, groundwater and
wetlands received specific regulatory protection. The transferral of
power from the state Department of Environmental Regulation to the
regional water management districts started and continued at an
irregular pace. Our growth increased to frightening proportions. Many
of the unsolved problems from the early 70's merged and magnified
the problems of duplication and inefficiencies in the permitting and
enforcement laws. The process was not working in a manner that
gave comfort to the public nor the permit applicants. The resources
were still being lost and few who were forced to use the permitting
systems were satisfied with the results. The 1986 and 1987
legislatures established this commission to make recommendations
that would solve the problems with the permitting and enforcement
laws.

PROBLEMS WITH PERMITTING AND ENFORCEMENT

The April 1987 Report to the Florida Legislature correctly stated
the findings of the commission. Chairman Landers cover letter
contained the consensus language upon which the rest of the
deliberations of the commission were based.

We have concluded that the concerns expressed by the Legislature in the
creation of the Commission are justified. We have heard testimony that the
environmental process as currently maintained is inefficient, sometimes
inequitable, frequently duplicative, expensive to both taxpayers and property
owners, confusing and, at its worst, punitive.
Without modification of the current environmental protection process, we are
convinced that the State's goal of protecting its environmental assets may not be
fully realized, that precious financial and human resources may be
inappropriately allocated, and the prosperity of the State threatened.









Though the Commission spent little time in the area, similar
problems were found with enforcement. The Commission identified
the following enforcement inefficiencies:
-Inconsistent fines
-Inadequate follow-up on permit conditions permits were
being granted based on conditions that were being violated or
ignored.
-Insufficient personnel assigned to agency enforcement
responsibilities.

Though a few witnesses who testified at the final public hearing
in November, 1987, felt that the system was functioning well and
that no elimination of duplication and inefficiencies was necessary,
the undisputed fact remains that in all but a few isolated incidences
the air and waters are getting dirtier and the amount of wetlands
are decreasing. It was also clear that most permit applicants who
appeared before the commission were not happy with the present
system.
In searching for a solution, the commission realized that just like
the ecosystem it is intended to protect, a permitting and
enforcement system should be viewed as a coherent whole. It found
that changes in one part almost always resulted in the need for
changes to other parts for a workable process to be established. This
realization reached its apex at the meeting in August, 1987, where
the commission agreed to a complete system to replace the multiple
overlapping and disjointed laws. However, subsequent meetings saw
a steady retreat by a majority of the commission from this systems
approach, replacing it with specific changes in a few of the
established programs. It is within this context that the majority
and minority reports were formulated.

REACTION TO THE MAJORITY REPORT

Except in a few instances, the minority does not object to the
basic purposes of the changes to the laws recommended in the
majority report. Our objections come more from what is not in the
report than what it contains. The early Report of the Commission
recognized major problems in a series of laws that neither protect
the environment nor provide an efficient and logical system for
permit applicants or the general public. The majority's response to
these problems is to shift a few of the programs and proclaim
victory. The position of the minority is that problems within




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) an environmental system can only be solved by a cohesive
permitting and enforcement system. This the majority failed
to propose. Kleenex does not cure the common cold, nor does moving
a few programs cure the ills of a series of laws that have never been
combined in a comprehensive, rational and consistent manner.
The minority does not concur with the majority in the following
specific areas. First, though we may generally approve of the
transfer of dredge and fill jurisdiction to the water management
districts as part of a complete system, we cannot approve of that
transfer without sufficient legislative resolution of the policy
conflicts involved and appropriate oversight within DER to make
certain that the process operates consistently and effectively.
Unless all water permitting is transferred to the water management
districts we are concerned that the transferral of this program
alone may result in more delays and inefficiencies as a result of the
disruption of agency personnel and process thah the benefits
received from elimination of permitting duplication.
Second, we do not concur in many of the recommendations
concerning the DRI process. This is a particularly strong dissent in
that area which restricts local government's ability to comment and
impose restriction on DRI's.
We oppose the convoluted rulemaking delegation between the
Trustees of the Internal Improvement Trust Fund and the water
management districts on sovereign submerged land leases. The
Trustees of the Internal Improvement Trust Fund (Governor and
Cabinet) hold these lands in trust for the the people of the state.
They should be responsible for the management and leasing of these
lands and the legislature should not split up this fiduciary
responsibility with the water management districts. To do so would
only reduce accountability and add an additional confusing layer of
responsibility.

MINORITY RECOMMENDATIONS

Though there may be a number of different systems that can be
used to solve the permitting and enforcement problems in Florida,
the following was judged by the minority as the one that would
cause the least disruption while still curing many of the problems.
The laws are too numerous, the programs too diverse, and the
institutional memories too long to say for certain that any system
will or will not work. Nor can one tell if any plan is politically
feasible. The majority, in an absence of courage, decided to do very









little, The minority, in perhaps an excess of zeal, proposes the
following.
Establish a phased-in, resource based environmental permitting
and management system that maintains the basic divisions of state
land management, water and air pollution permitting, protection and
control of animals, and planning within separate agencies. The
system includes present agencies and new ones created by combining
existing programs.

Before proceeding further it must be clearly understood
that the proposed system cannot work. and. in fact. may be
counterproductive. if the following conditions are not met
before implementation.

1. Sufficient funding through ad valorem taxes, general revenue
and users fees must be made available. It makes little sense to
change the present process to an underfunded new system. No system
can work without the proper start-up and continuation funding.
2. The system must be phased in over a reasonable period of time
under strict legislative oversight. If goals are not being met or if
the boards become overloaded, revisions can be made to correct
problems before they become institutionalized.
3. The Northwest Florida Water Management District must have
sufficient funds to participate on a equal basis with the other
districts. The passage of a constitutional amendment equalizing all
water management district millage caps must be a precondition to
any reorganization system that relies on the water management
districts for additional permitting responsibilities.
4. The Department of Environmental Regulation must maintain a
strong oversight role over the water management districts (Note
that the names would be changed to the Department of Environmental
Protection (DEP) and the environmental management districts
(EMDs)). This should include a specific bureau or division in DER/DEP
that will review permits and enforcement actions to assure that
there is general consistency between districts and that the
standards set by DER/DEP are properly applied. DER/DEP would also
perform economic as well as performance audits and report its
findings to the legislature each year.
5. Discretionary appeals to the Governor and Cabinet, sitting as
the Land and Water Adjudicatory Commission, must be maintained
for all permitting decisions of the environmental management


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districts as well as DER/DEP permitting and animal protection
decisions of the new Department of Fish and Wildlife.
6. Appointments to all collegial bodies acting as heads of
environmental agencies, except the Governor and Cabinet, will be
made by the governor from three possible choices forwarded to him
by a new Environmental Appointments Board. The members of the
EAB will be appointed by the Governor, Senate President and Speaker
of the House for designated terms. Appointees to agency boards will
be selected based on qualifications established in the organic acts
relating to each agency. The governor's appointee must be confirmed
by the Senate.

AGENCY COMPOSITION AND RESPONSIBILITIES

The system proposed by the minority contains four state agencies
and five regional adjuncts that are responsible for protecting the
state's natural resources. Each has a separate role and will be
accountable for the resource it is designated to protect. Though
there will still be some unavoidable overlap, the public should be
able to understand the divisions and look to the appropriate agency
for solutions with a minimum of confusion. The following are
general divisions for each agency and are not meant to be all
inclusive.

1. Department of Environmental Protection (DEP) This is a new
agency created from the old Department of Environmental
Regulation. It will be headed by a board of seven (formerly the
Environmental Regulation Commission) who will hire an executive
director responsible for staffing. The functions of the agency will
include setting statewide environmental standards, establishing
strong and specific oversight of the environmental management
districts (formerly water management districts), operate an
environmental research institute to coordinate all environmental
research in the state, coordinate a statewide environmental
database, permit environmental management district projects, and
act as a federal grant pass through coordinator for environmental
permitting to the environmental management districts. All
permitting functions will be transferred to the respective
environmental management districts except for district projects.
DEP will continue to manage various cleanup trust funds and
distribute monies to the districts as required. It will also be
required to make the information it collects and controls available









in the permitting, planning and enforcement processes to other
agencies.
2. Environmental Management Districts (EMD) These agencies,
created from the old water management districts, will become the
environmental permitting agencies of the state. They will permit all
air and water pollution sources, point and non-point, water quality
and quantity. The construction projects of these districts, such as
the south Florida flood control works, will be permitted by DEP. The
internal board structure will remain the same. Greater cooperation
with DEP will be required by law.
3. Department of Natural Resources (DNR No changes are
suggested to the leadership structure of this agency. The mission of
DNR will be to acquire, manage and protect state owned lands and
mineral resources, including its beaches. It will continue and expand
its role in maintaining, protecting and supervising state parks and
preserves. Responsibilities over marine resources and the Marine
Patrol will be transferred to the new Department of Fish and
Wildlife along with the aquatic plant program. Seafood marketing
will be transferred to the Department of Agriculture and Consumer
Services. The oil spill trust funds will be handled by DEP. The Florida
Geological Survey will be transferred to the DEP's environmental
research institute. DNR will continue to be responsible for leases
and sales of state-owned lands but will develop better coordination
with the environmental management districts.
4. Department of Community Affairs (DCA) The agency will
continue as the state land planning agency. No change in leadership
structure. DCA will administer the sewage treatment grant program
presently in DER.
5. Department of Fish and Wildlife (DFW) This new department
will be composed of the old Game and Freshwater Fish Commission
with the addition of saltwater resources, Marine Fisheries
Commission and the Marine Patrol from DNR. The constitutional
status will be removed by constitutional amendment. The
responsibilities of the agency will be to administer all game and
fish laws, including the setting of seasons and bag limits. It shall
also be responsible for all endangered species, including endangered
plants transferred from the Department of Agriculture and Consumer
Services. All aquatic weed control will be handled by the DFW. It
will be a commenting agency on all permit applications from all
environmental management districts that will impact fish or
wildlife and have exclusive jurisdiction to veto permits that will










place the continued existence of endangered species in jeopardy. It
will be headed by a five member appointed board.

ADDITIONAL COMMENTS

Local Governments. Regional Planning Councils The relationship
between the state agencies and local governments will need
clarification as the local comprehensive plans and their development
regulations are completed. However, any recommendations in this
area must necessarily wait until the processes are actually in
operation so that conflicts, if any, can be assessed based on real
needs rather than theoretical projections. The role of the regional
planning councils and changes to the DRI laws should be viewed in
the same light. The minority desires to state in the strongest
language, however, that the state should in no way restrict local
government's ability to have environmental standards more stringent
than those set by the state. Local governments are often the bulwark
of environmental protection and there should be no restrictions on
the stringency of their environmental protection regulations as long
as they meet or exceed the state minimum.
Administrative Fines The minority feels that the ability of
environmental agencies to levy and collect administrative fines
would substantially strengthen enforcement efforts. We strongly
recommend that the legislature pass laws that will allow this.
Environmental Appointments Board The minority recommends
that the legislature establish an environmental appointments board
(as described in paragraph #6) regardless of other changes made in
present law. The establishment of professional credentials for a
portion of all board memberships and the removal of much of the
present political appointment system could alleviate much public
distrust of the existing board process


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