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Full Text





THE ENVIRONMENTAL AND
LAND USE LAW SECTION
REPORTER
Vol.XX, No. 3
June1999


www.eluts.org
SRalph A. DeMeo, Chair Robert Manning, Co-editor Cathy Sellers, Co-editor Michelle Williams, Co-editor *



1999 ELULS Legislative Report:

J A Summary of Environmental and Land Use
J S Legislation Considered in the 1999 Regular Session


by Kent Wetherell, Hopping Green Sams & Smith, PA.


The Legislature concluded its 1999
Regular Session on April 30, 1999.
Although fewer bills were passed by
Sthe Legislature this year, the 60-day
S Session included its typical flurry of
activity with over 2,500 bills being
filed in the House and Senate. As ex-
pected, tax cuts, tort reform and edu-
cation were the marquee issues con-
sidered this Session. By contrast, the
amount of environmental and land
use legislation was limited.
The $48.9 billion budget approved
by the Legislature included almost $1
billion in tax breaks to businesses and
individuals. Of potential interest to
environmental and land use practi-
tioners, the tax breaks included an
exemption from the sales tax for the
purchase of machinery and equip-
ment used in certain manufacturing
operations (CS/HB 397), and a credit
against the severance tax paid by
mining companies (HB 105).
"Florida Forever"
The extension of the Preservation
2000 (P-2000) land acquisition pro-
gram was the highest profile environ-
mental issue considered during the
S1999 Session. Ultimately, the Legis-
lature approved a $3 billion ($300
million annually ever 10 years) pro-
gram to be known as "Florida For-
ever." The new program will com-


mence in 2001, after the expiration
ofP-2000 in the year 2000. As with P-
2000, the new program will be funded
primarily by documentary stamp tax
revenue. The extension of P-2000 was
one of Governor Bush's campaign is-
sues, and he is expected to sign the
bill (CS/CS/SB 908) into law.
The new program is intended to
have a broader focus than P-2000
which focused primarily on the acqui-
sition of environmentally sensitive
lands. Approximately 60-70% of the
annual funds are earmarked for land
acquisition (as compared to almost
100% in P-2000), with a significant
portion of those funds to be used for
the purchase of urban parks and in-
holdings. The remaining 30-40% of
the funds are earmarked for water
management purposes. The bill spe-
cifically authorizes and encourages
the multiple-purpose use ofthe lands
purchased under P-2000 and the new
program, including water resource
development, agriculture and silvi-
culture, and siting of linear facilities
(e.g., electric transmission lines, pipe-
lines, etc.). Consent of the Governor
and Cabinet is required for these uses
ofstatelands.
In comnunction with the creation of
the "Florida Forever" program, CS/
CS/SB 908 establishes the Acquisi-
tion and Restoration Council (ARC).


The ARC is composed of the Secre-
tary of DEP and representatives of
DCA, the Fish and Wildlife Commis-
sion, the Division of Historic Re-
sources and the Department of Agri-
culture and Consumer Services, and
4 members appointed by the Gover-
nor. The ARC will be responsible for
reviewing land purchase recommen-
dations and management and use
plans for state-owned lands, and pro-
viding a prioritized list of potential
acquisitions to the Board of Trustees
of the Internal Improvement Trust
Fund (i.e., Governor and Cabinet) for
continued, next page


INSIDE:

1999 Environmenta and Land Use Law
Update .......... ........ ........................ 7
The Environmental Impacts of the
Administratve Procedures Act Bill ........... 8
AA: Legislature Clarifies Agency
Rulemating Authority .. ....................... 9
The Florida Watershed Restoration Act
Total Maxnium Dal Loads................... 12
Pubc interest Environmentl
Conference................... ... ....... 14
HB 1413/ HB 2231/ SB 232, CS/CS/SB
................................................ ... 15


______ i ~ I __ _









approval. The ARC will complement
Florida Communities Trust which
provides grant monies to local gov-
ernments to purchase open space and
greenways.
Other provisions of CS/CS/SB 908
which are intended to further the
multiple goals of the new "Florida
Forever" program include:
* Creation of a Florida Forever Ad-
visory Council to evaluate the per-
formance of the "Florida Forever"
program and to report biennially
on unmet environmental needs
that the program should address.
Authorization for the use of Con-
servation and Recreation Lands
(CARL) monies for the manage-
ment of state lands.
Authorization for public-private
land management partnerships.
Limitations on "surplusing" of
state lands acquired under P-2000,
"Florida Forever" or other conser-
vation programs.
Provisions for payment in lieu of
taxes to counties, cities, school
boards and other units of local gov-
ernments within the county where
the State's land holdings within
that county result in a specified
loss in ad valorem tax revenue.
Re-authorization of the Florida
Greenways and Trails Council.

Other Significant Bills
that Passed
What follows is a brief discussion
of the other environmental and land
use bills of interest which were ap-
proved by the Legislature. Except as
otherwise noted, each of these bills
has been or is expected to be approved
by the Governor.

Administrative Procedure Act:
CS/HB 107 clarifies the legislative
intent underlying several aspects of
the 1996 APA reform. The bill re-
emphasizes the limitation on agency
rulemaking authority that is codified
in section 120.536, F.S. In so doing,
the bill specifically rejects the inter-
pretation of that statute in Consoli-
dated-Tomoka Land Co. v.
SJRWMD, 717 So.2d 72 (Fla. 1st DCA
1998). The bill also clarifies that agen-
cies may not adopt retroactive rules,
including rules intended to clarify
existing law, unless the Legislature
specifically authorizes the agency to


do so. This language was adopted in
response to the court's decision in
Environmental Trust v. DEP, 714
So.2d 493 (Fla. 1st DCA 1998). The
bill also rejects the analysis of the
concurring opinion in Dept. of Chil-
dren & Families v. Morman, 715
So2d 1076 (Fla. 1st DCA 1998), which
would permit the agencyto reject the
administrative law judge's conclu-
sions of law over which the agency
does not have substantive jurisdic-
tion. Finally, the bill further restricts
agencies from rejecting or modifying
the administrative lawjudge's conclu-
sions of law or interpretation of
agency rules unless the agency dem-
onstrates that its conclusion or inter-
pretation is "more reasonable" than
that rejected. It should be noted that
the bill specifies that it is not intended
to "reverse the result of any specific
judicial decision" (emphasis supplied).
[Ed. note- A comparative analy-
sis ofthis legislation can be found
on page 8.]

Clean Fuels Advisory Board:
CS/SB 1270 creates the Clean Fuels
Advisory Board within the Depart-
ment of Community Affairs (DCA).
The Advisory Board includes 22
members including representatives of
DEP and other state agencies as well
as representatives of cities, counties,
the petroleum industry, automobile
manufacturers, and others appointed
by the Secretary of DCA. The purpose
of the Advisory Board is to formulate
recommendations on expanding the
use of alternative fuel vehicles (AFVs)
in Florida. AFVs include vehicles
powered by electricity, natural gas,
propane or other non-petroleum fu-
els. Within 4 months after its first
meeting, the Advisory Board is to rec-
ommend the creation of one or more
public-private pilot projects to provide
experience and support for the expan-
sion of the AFV industry in Florida.
During the remainder of its 5-year
life, the Advisory Board is to identify
any statutory or regulatory changes
needed to increase the use of AFVs
in Florida, including modifications to
the current fuel tax system.

Community Environmental
Health: As initially proposed, SB
2352 and HB 1418 established seven
pilot projects through which the De-
partment of Health would promote


disease prevention and health care
among low-income persons living
near environmentally contaminated
areas. SB 2352 and HB 1413 failed t _J
pass; however, language in HB 2231
(which did pass) establishes pilot
projects to promote disease preven-
tion and health care am .g low-in-
come persons living is and
rural areas." HB 2231 signA~ catly
altered the focus of the pilot projects
by eliminating referecp. to pwn-
fields and the federal Siuprfua pro-
gram. The pilot projectawill develop
educational and out s s
which could then be timd in
other low-income communities, not
just those low-income ties
impacted by eni-U roy con-
taminated areas.
The pilot projects by
HB 2231 will be
such as the Palit
Area in Escambia-
income areas in .
Beach, and the a
in St. Petersburg.
to prepare a report
and the Governor
ings, accompli
mendations of the pi i
January 1, 2001 .*'

DRI Exemption farlCk1iAf t
Activities / Incredf'ifJ~t4R
Threshold for Hea Mi*tuAc-
tivities: Language in e#Ca lBBm6
exempts expansions to hirbbo*;iil
disposal sites, navigation chraels
and berths at certain ports from the
DRI review process. The exemption
only applies if the expansions are con-
sistent with the port's adopted, in-
compliance port master plan. Another
provision ofCS/CS/SB 1566 increases
the DRI threshold for heavy mineral
mines from 100 to 500 acres per year.

Environmental Compliance
Costs of Private Utilities: CS/SB
1352 authorizes private water and
sewer utilities to recover their envi-
ronmental compliance costs from ex-
isting and future customers of the
utility. This legislation resolves a
conflict in existing law under which
DEP and other environmental agen-
cies require utilities to include fea-
tures to ensure the environmental -
compliance of their facilities, but the
Florida Public Service Commission
(FPSC) prohibits recovery of those


__ 1~1_








costs through the rates paid by the
utility's customers. CS/SB 1352 effec-
#f'vely overrules Florida Public Ser-
SJice Comm'n v. Florida Waterworks
Ass'n, No. 98-1280 (Fla. 1" DCA May
10, 1999) which upheld the 18 month
margin reserve rule proposed by the
FPSC.

Everglades Restudy: CS/CS/SB
1672 provides additional state over-
sight of the ongoing Comprehensive
Review Study of the Central and
Southern Florida Project (Restudy).
Unlike HB 4141 which was approved
by the Legislature in 1998 but vetoed
by Governor Chiles, CS/CS/SB 1672
does not require specific legislative
approval of the Restudy plan and as-
sociated costs prior to submittal of
the plan to Congress. The bill desig-
nates the South Florida Water Man-
agement District as the local sponsor
of the Restudy and prescribes the
district's role in that capacity. The bill
specifically requires DEP to review
and approve each component of the
Restudy before it is submitted to Con-
gress. The bill further requires that
requests for additional funding to
f wplement any component of the Re-
O/'study must be submitted by the dis-
trict through DEP as part of the
Governor's budget request to the
Legislature.

Fish and Wildlife Conservation
Commission: CS/CS/SB 864 imple-
ments the constitutional amendment
approved by the voters in November
1998 to merge the Game and Fresh-
water Fish Commission (GFC) with
the Marine Fisheries Commission
(MFC). The bill transfers all of the
authority of the GFC and the MFC to
the new Fish and Wildlife Conserva-
tion Commission (FWCC), effective
July 1, 1999. Specified responsibili-
ties of DEP are also transferred to
the FWCC, including the Bureau of
Law Enforcement, Division of Marine
Resources, Bureau of Protected Spe-
cies Management and Office of Fish-
eries Management and Assistance.
The bill specifically provides that af-
ter these transfers, DEP will have no
duties regardingboating safety, how-
ever, DEP will retain its responsibil-
Sityto oversee theestate parks through
the Florida Park Patrol. DEP's Bu-
reau of Coastal and Aquatic Managed
Areas is transferred to the Division


of State Lands.

The bill requires the FWCC to pro-
vide adequate due process to any
party whose substantial interests are
affected by the actions of the FWCC
in implementing its constitutional
authority. In this regard, the FWCC
is encouraged to utilize the proce-
dures in Chapter 120, F.S., when
implementing its constitutional au-
thority. The FWCC is required to use
the procedures in Chapter 120, F.S.,
when implementing its statutory au-
thority. The FWCC is required to re-
port to the Legislature by December
1, 1999, on the due process proce-
dures it has implemented with re-
spect to its constitutional authority.

Front Porch Florida: CS/CS/SB
1566 creates the Office of Urban Op-
portunity as part of the Office of Tour-
ism, Trade and Economic Develop-
ment within the Governor's office to
implement the comprehensive ur-
ban-core redevelopment initiative
known as "Front Porch Florida." The
goal of that initiative is to empower
urban-core residents to craft solutions
to the unique challenge of each des-
ignated community. One element of
the initiative is the Urban Home-
steading Act (UHA) created in CS/CS/
HB 17. The UHA is to be adminis-
tered by DCA in conjunction with the
Office of Urban Opportunity and will
permit local governments to make


foreclosed single-family housing prop-
erties available to qualified low-in-
come buyers for purchase at a nomi-
nal rate.

Limerock Mining: HB 329 in-
cludes various mechanisms which
will ensure that southeast Dade
County will continue to be the
limerock source for the state of
Florida. The limerock industry is af-
forded certain regulatory approvals in
exchange for a $0.05 per ton mitiga-
tion fee which will be used to offset
the environmental impacts from the
mining activity. The fee is collected
by the Department of Revenue and is
transferred to the South Florida Wa-
ter Management District to be used
to offset the adverse environmental
impacts of limerock and sand mining
activities. A formula is established for
annual increases to the fee beginning
January 1, 2001. The bill also extends
the existence of the Miami-Dade
County Lake Belt Plan Implementa-
tion Committee until January 1,
2002, and the Committee is directed
to consider the feasibility of develop-
ing a common mitigation plan for
non-rock mining activities within the
area, including the imposition of a
non-rock mining mitigation fee.

Mitigation ofDRI Transporta-
tion Impacts: CS/CS/HB 17 autho-
rizes "pipelining" of the transporta-
continued, nextpage


This newsletter is prepared and published by the Environmental and Land Use Law
Section of The Florida Bar.

Ralph A. DeMeo, Tallahassee.............................................................................. Chair
Lawrence E. Sellers, Jr., Tallahassee .................................................... Chair-elect
Richard Hamann, Gainesville...................................................................... Secretary
Sidney F. Ansbacher, St. Augustine........................................................ Treasurer
Robert Manning, Tallahassee ................................................................... Co-editor
Cathy M. Sellers, Tallahassee.................................................................. Co-editor
Michelle Williams, West Palm Beach ........................................................ Co-editor
Lynn Brady, Tallahassee ................................................................. Production Artist
Jackie Werndli, Tallahassee ................................................. Section Administrator

Statements or expressions of opinion or comments appearing herein are those of the
contributors and not of The Florida Bar or the Section.


r ____ I I ___1









tion improvement costs of certain
mixed-use DRIs. "Pipelining" allows
DRI developers to satisfy transporta-
tion concurrency by payment of a pro-
portionate share contribution for the
development's impacts to state and
regional roadways in lieu of satisfy-
ing the traditional concurrency re-
quirements in section 163.3180, F.S.
The proportionate share contribution
must be sufficient to fully pay for one
or more required improvements to
impacted state or regionally signifi-
cant roadways.
This pay-and-go alternative to
concurrency was included in the rec-
ommendations of the 1998-99 Trans-
portation and Land Use Study Com-
mission as a means to encourage
well-planned development, and it is
similar to provisions of the DCA
"pipelining" rule that was repealed in
1996 (former Rule 9J-2.0255, FAC.).
The "pipelining" alternative only ap-
plies to DRIs that contain at least 3
different land uses, including at least
100 residential dwelling units, which
are integrated and designed to en-
courage pedestrian and non-automo-
tive modes of transportation. The bill
becomes effective on July 1, 1999,
and the "pipelining" alternative can-
not be used by DRI developers unless
and until the applicable local compre-
hensive plan is amended to include
the alternative.

Motor Vehicle Inspection Pro-
gram (MVIP): In response to a 1998
bill requiring legislative action on the
MVIP during the 1999 Session and
public opposition to the program, CS/
SB 1270 significantly scales back the
MVIP in the six Florida counties for-
merly classified as non-attainment
areas under the federal ozone ambi-
ent air quality standard. As modified,
the MVIP will include biennial test-
ing (once every 2 years) rather than
annual testing, but the fee will be in-
creased from $10 to $19 per test. The
bill exempts cars newer than 3 years
old from the testing. CS/SB 1270 is
similar to the "default" provision
which was built into the 1998 legisla-
tion in the event that the Legislature
failed to act in 1999. In light of the
scaled-back versioniofthe MVIP, it is
possible that the U.S. Environmen-
tal Protection Agency (EPA) could
determine that Florida is not in com-
pliance with the Clean Air Act and


force the state to enact more strin-
gent air emission requirements on
stationary sources. The bill autho-
rizes the cancellation of the MVIP in
the event that EPA adopts and
Florida implements a statewide clean
fuels requirement.

Northwest Florida Water Man-
agement District Permitting: The
exemption from the environmental
resource permit (ERP) program in
the Northwest Florida Water Man-
agement District was scheduled to
expire on July 1, 1999. CS/HB 2067
extends the expiration date another
four years to July 1, 2003. Until that
date, the existing management and
storage of stormwater program will
continue to apply in the district. DEP
and the district are required to de-
velop a plan for implementing the
ERP program in the district, includ-
ing the submittal of an interim re-
port on the development of the plan
to the Legislature and the Governor
prior to March 1, 2001, and a final
report on March 1, 2003. This timing
is intended to allow for possible leg-
islative action in the 2003 Regular
Session to implement the ERP Pro-
gram in the NWFWMD. The bill spe-
cifically provides that any jurisdic-
tional determination issued by the
district that is in effect on July 1,
1999, and for which a permit has
been issued shall remain valid
through July 1, 2002.

One-Stop Permitting: CS/CS/SB
662 amends the one-stop environ-
mental permitting program estab-
lished in 1997 to facilitate application
over the Internet. No substantive
changes were made to the program.
The Department of Management
Services is required to establish a
one-stop permitting Internet site by
January 1, 2000. The bill also encour-
ages local governments to integrate
their permitting programs with the
state one-stop permitting program
and authorizes grant awards of up to
$50,000 for such Quick Permitting
Counties.

Pasco County Wastewater Dis-
charges into Coastal Waters: CS/
SB 1424 prohibits any new wastewa-
ter discharges into coastal waters
from Pasco County, and requires all
existing discharges to be eliminated


by July 1, 2004. DEP may grant ex-
ceptions to these requirements where
no alternative method of discharge i
available and specified conditionsar J
met for the quality of the discharge.

Petroleum Contamination
Clean-up: HB 2151 includes various
"glitch" amendments to the petro-
leum contamination clean-up pro-
gram administered by DEP. The bill
establishes a pilot program for five
sites which have been identified as
low priority under the clean-up pro-
gram and authorizes innovative tech-
nology to be used in cleaning up those
sites. The bill also authorizes DEP to
enter into site rehabilitation agree-
ments (SRAs) under the clean-up pro-
gram for sites contaminated by both
existing and "new" (post-December
31,1998) discharges. This provision
is retroactive to January 1, 1999, and
certain exclusions apply. For ex-
ample, a SRA may not be entered into
for "new" discharges on Superfund
sites, or discharges that were inten-
tional or caused by existing dis-
charges which were notproperly cor-
rected. The bill also makes $5 million
per year available for recovery o"l
"free product" (e.g, gasoline floating W
on surface water) and in doing so may
allow earlier clean-up of such sites
notwithstanding the site's ranking in
the program. Finally, the bill pro-
vides for the continuation of the pre-
approved advance clean-up portion of
the program by eliminating the
scheduled repeal date of October 1,
1999.

Prescribed Burning / Wildfire
Prevention: CS/HB 1535includes a
variety of amendments in response
to the wildfires which ravaged the
state in the summer of 1998 and
which engulfed the Everglades ear-
lier this year. The bill directs the
Department of Agriculture and Con-
sumer Services to reorganize the Di-
vision of Forestry (Division), as nec-
essary, to strengthen the Division's
role in preventing wildfires. The bill
shifts the responsibility from the Gov-
ernor to the Commissioner of Agri-
culture to issue a declaration of "se-
vere drought" and defines the A
activities that are prohibited in areasA
subject to such declaration. The bill
also establishes guidelines and pro-
cedures for prescribed burning, in-


_ ___I~ ___XI I








cluding a requirement that a certi-
fied burn manager be on-site during
(fae prescribed burn. In an effort to
Courage prescribed burning, the
bill eliminates the property owner's
liability for damage or injury arising
out of the prescribed burn absent
proof of gross negligence. The bill
authorizes the Division to conduct
prescribed burns on public or private
lands to minimize the danger ofwild-
fires. The landowner must be given
notice and an opportunity to chal-
lenge the Division's decision through
the administrative process. The bill
also strengthens criminal penalties
for arson and other acts which may
result in wildfires. Finally, the bill
specifically authorizes any noncon-
forming use which was damaged or
destroyed by the 1998 wildfires to be
rebuilt notwithstanding any other
provision of law.

Public School Concurrency: CS/
SB 2380 makes several modest
changes to the school concurrency
legislation that was adopted in the
1998 Session in response to the rec-
ommendations of the 1997-98 Public
schools Construction Study Commis-
1 -sion. The bill exempts the plan
amendments which adopt the public
school concurrency element as well
as any related amendments to the
capital improvements or intergovern-
mental coordination elements of the
plan from the twice-a-year limitation
on amendments to the local compre-
hensive plan. The bill specifically pro-
vides that collocating new schools
with existing schools and locating
new schools outside of the urban ser-
vice area are permissible in certain
narrowly-designed circumstances.

Septic Tanks: CS/SB 2380 pre-
cludes DCA from utilizing standards
for on-site sewage disposal systems
(i.e., septic tanks) more stringent
than those adopted by the Depart-
ment of Health when evaluating
amendments to the local comprehen-
sive plans, except in areas of critical
state concern.

Total Maximum Daily Loads
(TMDLs): Language authorizing the
establishment and allocation of
TMDLs was included in two billsap-
proved by the Legislature, CS/HB
2067 and CS/SB 2282. The language


in each bill is identical.
CS/SB 2282, known as the "Florida
Watershed Restoration Act", imple-
ments the directives of section 303(d)
of the federal Clean Water Act to es-
tablish a TMDL program for state
waters not meeting water quality
standards. TMDL is a measure of the
maximum amount of pollutant that a
water body or segment can assimi-
late from all sources without exceed-
ing water quality standards. DEP is
the lead agency for implementing the
TMDL program.
The TMDL program is supplemen-
tal to the existing water quality pro-
grams implemented by DEP and the
water management districts, and is
intended to provide an equitable allo-
cation of pollution loads amongst ex-
isting point and nonpoint sources and
to supplement existing regulatory
programs where necessary to achieve
restoration of impaired water bodies.
The bill requires DEP to submit
prioritized lists of water bodies or seg-
ments which fail to meet water qual-
ity standards and for which TMDLs
will be established. The lists are not
subject to challenge under the Florida
Administrative Procedure Act. DEP
will conduct a TMDL assessment for
the listed water bodies or segments
in accordance with the prioritized
lists. The bill establishes the meth-
odology for the assessment, and re-
quires the methodology to be adopted
by rule. The bill specifies the meth-
odology for allocating the TMDLs
amongst existing point and nonpoint
sources impacting the affected water
body or course. In allocating the
TMDLs, the bill requires DEP to con-
sider factors including the cost-ben-
efit of achieving the allocation and
the environmental, economic, and
technological feasibility of achieving
the allocation.
DEP is authorized to adopt interim
measures and best management prac-
tices for nonpoint sources which are
necessary to facilitate the restoration
of the affected water body. DEP, in
cooperation with the water manage-
ment districts, is authorized to de-
velop a procedure for pollutant trad-
ing amongst the point and nonpoint
sources to a water body or segment.
The procedure would include a
mechanism for issuance and tracking
of pollutant credits (presumably, simi-
lar to wetland mitigation banking


program). Any pollutant trading pro-
gram would require legislative ratifi-
cation prior to becoming effective.
[Ed. note- A comprehensive analy-
sis of this legislation can be found
on page 12.]

Urban Infill and Redevelop-
ment: CS/CS/HB 17 includes a num-
ber of regulatory incentives to en-
courage urban infill and
redevelopment, including revisions to
the procedures by which local govern-
ments designate urban infill and re-
development areas and increases in
the DRI thresholds for office, com-
mercial, and hotel projects within
such areas. Language is also added
to the State Comprehensive Plan
(Chapter 187, F.S.) to encourage ur-
ban infill and redevelopment. A grant
program is created to assist in imple-
menting urban infill and redevelop-
ment projects.
In addition to the incentives, CS/
CS/HB 17 includes a number of tech-
nical revisions to the procedures for
municipal incorporation and annex-
ation, as well as a procedure that
counties and municipalities can use
to resolve conflicts regarding the de-
livery and financing of local services
(e.g., water and sewer). The bill also
includes various revisions to Chapter
190, F.S., relating to Community
Development Districts.
The bill adopts several of the rec-
ommendations of the 1998-99 Trans-
portation and Land Use Study Com-
mission that are intended to reduce
reliance on the single occupancy ve-
hicle. For example, the bill autho-
rizes local governments to establish
multi-modal transportation districts
as part of the local comprehensive
plan. The district would include com-
munity design elements which en-
courage pedestrian transit as well as
multi-modal level of service stan-
dards. Transportation impact fees
within such districts could be re-
duced.

Zellwood Drainage and Water
ControlDistrict: As part of the con-
tinuing Lake Apopka clean-up efforts,
HB 1609 dissolves the Zellwood
Drainage and Water Control District
contingent upon the purchase of the
remaining farmlands inlhe district
by the St. Johns River Water Man-
continued, next page


i I j








agement District. Similar legislation
was approved in 1998; however, the
SJRWMD and the landowners were
unable to agree upon the purchase
price for the remaining lands. This
year, the state budget includes ap-
proximately $11 million for the pur-
chase of those lands.
Significant Bills That
Failed to Pass
Of the 14 issues identified in the
ELULS Legislative Preview (March
1999), only four issues did not receive
favorable legislative action. Three of
those issues, Title V fees, ex parte
communications and tax exemption
on conservation lands did not receive
any legislative attention, but may
resurface during the 2000 Regular
Session. Legislation restricting so-
called SLAPP suits by governmental
entities against private individuals
received considerable legislative at-
tention but ultimately failed to pass
(CS/SB 64). Legislation on one other
issue discussed in the ELULS Legis-
lative Preview, environmental equity
and justice, passed in a watered down
form (see discussion of Community
Environmental Health above), that
the Center for Environmental Equity


and Justice at Florida A&M did not
receive the $1 million appropriation
it requested.
Other environmental or land use
bills which failed to pass in the 1999
Session and which may resurface
during the 2000 Regular Session in-
clude:
* SB 1804 which proposed various
changes to the wetland mitigation
banking program, such as requir-
ing the use of a functional assess-
ment methodology and "leveling of
the playing field" for private miti-
gation banks by requiring permits
for agency-operated mitigation
banks
* HB 1765 which would have re-
quired DEP and the Department
of Agriculture and Consumer Ser-
vices to prepare a report to the
Legislature prior to the 2000 Regu-
lar Session on a recommended pro-
cedure for the identification and
clean-up of cattle dipping vats on
public and private property
* CS/SB 1760 which would have re-
quired the Department of Health
to study the effects on people of the
aerial spraying ofMalathion, which
is used to combat the Mediterra-
nean fruit fly which can infest fruit


and vegetable crops, and which
would have specified that aerial
spraying should be used as a last!
resort and would have required
reimbursement of expenses to per-
sons who are forced to leave an
area during spraying.
* HB 779 and CS/SB 1142 which
would have provided $300,000 an-
nually from the Solid Waste Man-
agement Trust Fund to Southern
Waste Information Exchange, Inc.,
to assist small businesses and in-
dustries in complying with solid
and hazardous waste management
regulations and meeting the
State's and recycling goals.
* HM 493, a memorial to Congress
and the President, expressing
Florida's support for the use of
Florida's wetland delineation
methodology by the U.S. Army
Corps of Engineers in lieu of the
federal methodology for wetland
delineation.
* SB 188 and HB 14 which would
have replaced the Mockingbird
with the Scub Jay as the official
state bird and which might have
had the effect, of furthrretric"t-
ing development impactsto
Jay habitat.
* Language which would have estab-
lished guidelines and procedures
for siting hazardous waste trans-
fer facilities.

Conclusion
Overall, the 1999 Session was rela-
tively uneventful in the environmen-
tal and land use arena. Given the ebb
and flow of the legislative process, it
is likely that the 2000 Session will see
more environmental issues at the
forefront.

Kent Wetherell is an associate with
Hopping Green Sams & Smith, P.A.,
in Tallahassee where his practice fo-
cuses on administrative law, land use
law and legislative lobbying. He is the
1998-99 chairman of the ELULS Leg-
islative Committee. Mr. Wetherell
would like to acknowledge the contri-
butions of Wade Hopping, Frank
Matthews and Mike Petrovich to this
article. Copies of the bills discussed in
this article are available on theej%
Internet at the Legislature's website -
www.leg.state.fLus


< Make your Annual Update

hotel reservation early!


Ritz-Carlton Amelia Island

August 19-21

A block of rooms has been reserved at the Ritz Carlton at the
rate of $149 single/double occupancy. To make reservations,
call the Ritz directly at (904) 277-1100. Reservations must be
made by July 18,1999 to assure the group rate and availability.
After that date, the group rate will be granted on a "space avail-
able" basis.










Join us for FUN, SUN and CLE!

1999 environmental and Land Use Law Update

August 19 21 Ritz Carlton, Amelia Island

Featuring:
* A panel discussion by the Environmental and Land Use Leaders of Florida
DEP Representative
DCA Representative
J. Allison DeFoor, Everglades Policy Director, Office of the Governor
* Friday night reception entertainment provided by John H. Hankinson, Jr.
and the Non-Essentials
* ELUL Section website demonstration and legal resources on the web
* Annual meeting luncheon speaker John H. Hankinson, Jr., Director, EPA Region IV

Seminar Topics:
* 1999 Legislative Update
* Administrative Law Update
* EPA's Environmental Justice Program
* Prosecution and Defense Perspectives on Environmental Crime Investigations,
Prosecutions, and Parallel Proceedings
* Ethics Update: The Unlicensed Practice of Law & Environmental Consultants
* Environmental and Land Use Policy in the New Millennium
* The New Fish & Wildlife Conservation Commission
* The Florida Community Health Protection Act
* Water Management District Update
SLocal Land Use Issues
* The Keys: A Land Use Laboratory
* State Land Acquisition/Preservation Initiatives
* Alternative Dispute Resolution of Land Use Controversies
* Takings Law
* Brownfields and RBCA Update
SFederal Wetlands and the Endangered Species Act Update
RCRA/CERCLA Update
Frontiers in Water Resource Development
Clean Air Act Update

ELULS Committee Meetings:
Affiliate Membership
Continuing Legal Education
Access to Justice
Public Interest Representation

Registration information will be available in the next edition of the Reporter,
the July 1 issue of the Bar News and on the section's website atwww.eluls.org.


r -- ----~-r--rr;a. ----I -r- 1 I'fl








The Environmental Impacts of the

Administrative Procedures Act Bill
by Terrell K. Arline, Legal Director, 1000 Friends of Florida, Inc.


The 1999 Legislature passed sig-
nificant amendments to the Admin-
istrative Procedures Act. CS/HB 107,
the APA bill, was designed in part to
overturn the case of St. Johns River
Water Management District v. Con-
solidated Tomoka. Because the bill is
retroactive in its application, it
threatens virtually every environ-
mental rule now on the books.
By way of background, it should be
noted that the following provision of
the Florida Statutes was the focus of
the Tomoka case.
373.413 Permits for construction or
alteration.
(1) Except for the exemptions set
forth herein, the governing board or
the department may require such
permits and impose such reasonable
conditions as are necessary to assure
that the construction or alteration of
any stormwater management sys-
tem, dam, impoundment, reservoir,
appurtenant work, or works will
comply with the provisions of this
part and applicable rules promul-
gated thereto and will not be harm-
ful to the water resources of the dis-
trict ... (Emphasis added)
The St. Johns River Water Man-
agement District had cited this sec-
tion of Florida law in Tomoka as au-
thority to adopt a new rule to regulate
stormwater and protect the flood-
plains of the Tomoka River and
Spruce Creek. The property owners
challenged the rule under the 1996
amendments to the Florida Adminis-
trative Procedures Act. The Admin-
istrative Law Judge agreed with
them and invalidated the rule. He
found that Section 373.413, Fla. Stat.
(1997), was not "detailed" enough un-
der the 1996 amendments to support
the Tomoka rule.
The First District Court of Appeal
reversed, holding that the rule was
valid and based upon the agency's
authority under Section 373.413, Fla.
Stat. (1997), to protect the "water re-
sources of the District." Specifically,
the Court found that the rule came
"within the class of powers and du-
ties identified in the enabling stat-
ute." It should be noted that while the
APA contains language that it is not


intended to overturn the "result" of
any court cases, the bill specifically
nullifies the reasoning behind the le-
gal conclusion of the Court.
While much of the discussion sur-
rounding the APA bill involved the
agencies' ability to adopt "new"-rules,
in reality CS/HB107 is retroactive in
application, as well as prospective.
The amendments to Section 120.52
(8), Florida Statutes proposed in the
bill define what it takes for a rule to
be a valid exercise of delegated legis-
lative authority. These provisions can
be likened to a "gauge" with which to
measure the specific amount of statu-
tory authority needed for any agency
to adopt a rule. Th6 1996'amend-
ments narrowed that gauge. CS/
HB107 narrows it even further.
The "retroactive" application of
this bill is made through Section
120.56(3); Fla. Stat. (1997), which au-
thorizes challenges to "existing
rules." In these types of rule chal-
lenge proceedings, the "gauge" set
forth in this bill would be applied to
see if the rule is supported by a "spe-
cific" enough statute. Under the APA
bill it could be argued that Section
373.413, Fla. Stat. (1997), is no longer
specific enough to support the
Tomoka rule and that rule could be
challenged again. If this bill cannot
support the Tomoka rule, then hun-
dreds of other existing rules are sub-
ject to invalidation.
Section 373.413, Florida Statutes
is not only the basis of the Tomoka
rule, it is also the specific enabling
authority cited by both the Florida
Department of Environmental Pro-
tection and the various Water Man-
agement Districts for more than 400
existing environmental rules cur-
rently on the books. These are not
new rules. They are rules that have
been in existence for many years and
regulate such activities as dredge and
fill in wetlands, mining, the imple-
mentation of the State Water Policy,

flood protection, water quality, and
surface water management systems.
In addition, there are more than 1000
other existing environmental rules of
the Department of Environmental
Protection and rules of other non-


environmental agencies that cite to
similar, arguably "nonspecific" statu-
tory authority.
Under the APA bill, existing envi-
ronmental rules, as well as all future
rules proposed by state environmen-
tal agencies that are not based upon
a "specific" statute, are subject to a
rule challenge under Section 120.56,
Fla. Stat. (1997).
The 1996 amendments to Chapter
120 have already spawned litigation
to invalidate existing environmental
rules. In a recent case against the
South Florida Water Management
District chalenging the denial of
three no notice general permits, the
property owner used the 1996 amend-
ments to the APA to challenge the
secondary impacts rule, which has
been on the books since 1994. Royal
Palm Beach Colony, L.P. v. South
Florida Water Management District,
DOAH Case No. 98-4163RX (Final
Order issued March 3, 1999). Fortu- i
nately, the Administrative Law Judge
upheld this rule under Tomoka. How-
ever, under the new amendments to
the APA, this important environmen-
tal rule could be challenged again as
not based upon a "specific" enough
statute.
Rule challenges of existing admin-
istrative rules are bound to become
more prevalent in the future given
the changes proposed by the APA bill.
This will result in less protection of
the health of our citizens and the en-
vironment. Given that the 1996
amendments to the APA also guar-
anteed the challenger's an award of
attorney's fees of up to $15,000, the
APA bill will also have a fiscal impact
on the agencies, as they focus their
resources on defending their rules.

As the Legal Director of 1000 Friends
of Florida, Terrell K. Arline moni-
tors and participates in administra-
tive,judicial and appellate proceedings
that involve growth management and
environmental law. Heprovides citizens
around the state of Florida with advice
on implementing the locrl comprehen-
sive panningprocess, and networks with
private attorneys and planners to pro-
vide professional representation.


r r








APA: Legislature Clarifies Agency

Rulemaking Authority

by Lawrence E. Sellers, Jr., Holland & Knight LLP

"I think that anybody who would oppose this bill is a fascist. This bill
only will affect agencies when they go above and beyond what they have
authority to do."

Representative Nancy Argenziano'


This year, the Florida Legislature
enacted additional changes to the
Administrative Procedure Act (APA).
These changes are intended to clarify
the limits on agency rulemaking au-
thority and to "level the playing field"
in disputes between citizens and their
government. The changes enjoyed
broad support in the Legislature, but
they have received considerable at-
tention from others, primarily be-
cause of claims that they would put
hundreds of environmental rules in
jeopardy.2

* Background
In 1996, the Florida Legislature
enacted significant amendments to
the Administrative Procedure Act
(APA).3 Among other things, these
amendments were designed to clarify
the limitations on agency rulemaking
authority and to "level the playing
field" in disputes between citizens and
their government. Subsequently,
Florida's appellate courts issued sev-
eral decisions interpreting the 1996
amendments to the APA in a fashion
that some legislators say was not in-
tended. In response, measures were
filed in both the House and the Sen-
ate to amend the APA to clarify the
Legislature's intent. The Legislature
ultimately approved the House bill,
CS/HB 107,4 by Representative Ken
Pruitt.5 This article summarizes
some of the key provisions in the bill.

Limitations on
Rulemaking Authority,
Prior to 1996, appellate courts held
that a rule is valid if it is reasonably
r relatedd to the purpose of the enabling
Legislation and is not arbitrary and
capricious.6 In 1996, the Legislature
sought to overrule this judicially cre-
ated test by amending the APA to


expressly provide that "[n]o agency
shall have authority to adopt a rule
only because it is reasonably related
to the purpose of the enabling legis-
lation and is not arbitrary and capri-
cious."7 The amended language also
provides that statutoryoy language
granting rulemaking authority or
generally describing the power and
functions of an agency shall be con-
strued to extend no further than the
particular powers and duties con-
ferred by the same statute."8
Last year, the First District Court
of Appeal struggled to interpret this
"particular powers and duties" lan-
guage. In St. Johns River Water Man-
agement District v. Consolidated-
Tomoka Land Co.,9 the court
recognized that there were two pos-
sible interpretations of the phrase
"particular powers and duties." The
statute could mean that the powers
and duties delegated by the enabling
statute must be "particular" in the
sense that they are identified (and
therefore limited to those identified)
or in the sense that they are de-
scribed in detail.10 In his final order,
the administrative law judge had
adopted the latter interpretation,
construing the phrase to mean that
the enabling statute must "detail" the
powers and duties that would be the
subject of the rule, and he invalidated
the proposed rule." The First Dis-
trict Court of Appeal chose the
former, less restrictive interpreta-
tion, and it reversed. The court went
on to say:

The question is whether the rule
falls within the range of powers the
Legislature has granted to the
agency for the purpose of enforcing
or implementing the statutes
within its jurisdiction. A rule is a
valid exercise of delegated legisla-


tive authority if it regulates a mat-
ter directly within the class ofpow-
ers and duties identified in the stat-
ute to be implemented.12
In enacting CS/HB 107, the Legis-
lature rejected this "class of powers
and duties" interpretation. The bill
requires that agency rules must be
derived from "specific" legislative au-
thority and expressly provides that an
agency may not adopt a rule simply
because it is within the agency's
"class of powers and duties" found in
the enabling statute.13
Environmental interest groups ar-
gued that this new language would
jeopardize hundreds of existing envi-
ronmental rules,14 and they urged
that this new language apply only to
those rules adopted after the effec-
tive date of the bill. Indeed, at one
point the Senate bill was amended to
provide that the changes to the
rulemaking authority only "apply to
all rules adopted after the effective
date of this act."'5 In the end, the
Legislature rejected this prospective
approach and instead provided sim-
ply that "it is not the intent of the
Legislature to reverse the result of
any specific judicial decision."16 On
the floor, Representative Pruitt ex-
plained that this was intended merely
to preserve the "law of the case" as to
those who were parties to the Con-
solidated-Tomoka case.
However, the bill also allows agen-
cies to identify those rules that do not
meet this clarified rulemaking stan-
dard and to shield these rules from
rule challenges until the Legislature
has an opportunity to determine
whether to grant the necessary spe-
cific rulemaking authority.'7 Thus,
agencies easily may protect impor-
tant rules including environmen-
tal rules from rule challenges if
continued, next page








there is any doubt as to whether
these rules are authorized under the
clarified rulemaking standard.'s

Leveling the Playing Field
In addition to clarifying the limits
on agency rulemaking authority, CS/
HB 107 seeks to "level the playing
field" in several respects.

Order of Presentation
In 1996, the Legislature sought to
level the playing field in proposed
rule challenges.19 The 1996 amend-
ments expressly provide that a pro-
posed rule is not presumed to be valid
or invalid.20 The amendments also
ease the burden on the challenger by
simply requiring the challenger to
"state with particularity the objec-
tions to the proposed rule and the
reasons that the proposed rule is an
invalid exercise of delegated legisla-
tive authority."21 The agency then
has the burden to prove that the pro-
posed rule is not an invalid exercise
of delegated legislative authority as
to the objections raised.2 However,
in Consolidated-Tomoka, the admin-
istrative law judge interpreted this
procedure to mean that, although the
agency has the ultimate burden of
establishing the validity of the pro-
posed rule, the petitioner has the
burden of going forward with the evi-
dence to support the objections." In
dictum, the First District Court of
Appeal indicated its approval of this
interpretation.2 CS/HB 107 adopts
this interpretation and expressly pro-
vides that the petitioner bears the
burden of going forward.25

Standard of Proof
As noted, the agency has the ulti-


mate burden to prove that the pro-
posed rule is not an invalid exercise
of delegated legislative authority as
to the objections raised.26 However,
a decision by the First District Court
of Appeal suggested that the stan-
dard of proof was not clear.2 CS/HB
107 addresses this by expressly pro-
viding that the standard of proof in
these cases is a preponderance of the
evidence 28and not merely competent
substantial evidence.

Agency Authority to Reject Rec-
ommended Conclusions of Law
CS/HB 107 addresses an agency's
authority to reject an administrative
judge's recommended conclusions of
law. First, the bill makes clear that
the agency in its final order may re-
ject or modify only those conclusions
of law "over which the agency has
substantivejurisdiction."29
Second, CS/HB 107 narrows an
agency's authority to reject an ad-
ministrative law judge's recom-
mended conclusions of law. Florida
courts have held that an agency may
reject "without limitation" an admin-
istrative law judge's recommended
conclusions of law.30 CS/HB 107 lim-
its this authority by providing that,
when rejecting or modifying such con-
clusions of law, the agency muststate
with particularity its reasons for re-
jecting or modifying the recom-
mended conclusion of law and must
make a finding that its substituted
conclusion of law is as or more rea-
sonable than the conclusion that was
rejected or modified.3;

Retroactive Rules
Generally speaking, an administra-
tive rule has only prospective appli-


cation.32 However, the First District
Court of Appeal recently created an
exception and held that a rule that
"merely clarifies another existing
rule and does not establish new re-
quirements" may be applied retroac-
tively.33 CS/HB 107 provides that an
agency may not adopt retroactive
rules, including those intended to
clarify existing law, unless expressly
authorized by statute.34

Judicial Review
The APA provides for judicial re-
view, of agency action, and it requires
the reviewing court to remand a case
to the agency or to set aside agency
action when it finds that the agency
"has erroneously interpreted a provi-
sion of law."35 Nothing in the APA
requires the court to defer to the
agency's interpretation and nothing
limits the reviewing court's author-
ity to those cases in which the court
determines that the agency's inter-
pretation is "clearly" erroneous.
Rather, the court is to review the
agency's interpretation of law de
novo.36
Nonetheless, some courts have
held that a reviewing court must give
"great deference" or "great weight'to
an agency's construction of a statute
or rule that the agency is charged
with enforcing.37 Other courts have
held that an agency's interpretation
will not be overturned unless the in-
terpretation is "clearly erroneous."8
At one point, the bill was amended
to make it clear that a reviewing
court is not to defer to an agency's
construction of a statute or rule, or
to otherwise afford any special weight
to the agency's interpretation of a
statute or rule.39 However, in an ef-
fort to address objections raised by
the Governor's Office, this provision
was removed prior to finii pa p.

Miscellane s a

CS/HB 107 includes two other pro-
visions that merit mention.

Definition of "Agency"
The bill amends the definition of
the term "agency" to expressly in-
dude a regional water supply author-
ity.4 The definition al is amended
to expressly exclude entities de-
scribed in Chapter 298 (water control
districts) and any "multicounty spe-


Section Calendar

Up-and-Coming

June 24 Challenges of Urban Redevelopment of
Environmentally Impacted Properties Boca Raton

August 19-21 1999 Annual Environmental and Land Use Law
Update Amelia Island









cial district with a majority of its
governing board comprised ofelected
r) persons."41 In addition, CS/HB 107
reorganizes the definition of"agency"
in an effort to make it easier to un-
derstand.

School Districts
Finally, district school boards are
authorized to adopt rules to imple-
ment their general powers under Sec-
tion 230.22, Florida Statutes, notwith-
standing the new limitations on
rulemaking authority.42

Conclusion
Many of the 1999 amendments to
the APA are designed to address ap-
pellate decisions, including decisions
interpreting the 1996 amendments.
It will be interesting to see how the
courts interpret these latest amend-
ments.


Lawrence E. Sellers, Jr., is a part-
ner in the Tallahassee office of Hol-
land & Knight LLP, where he prac-
tices environmental and administra-
tive law. He received his J.D. in 1979,
' with honors, from the University of
Florida.

Endnotes:
1 Josh Zimmer, "Environmental Groups Tar-
get Legislation Limiting Regulations," St.
Petersburg Times (March 16, 1999).
2 E.g., Shirish Date, "Pruitt Aid Puts 400
Environmental Rules in Jeopardy," Palm
Beach Post (March 4, 1999); but see Ken
Pruitt, "HB 107 Not Anti-Environment, It
Fends Off Encroaching Rules," The Stuart
News (April 16, 1999).
s For a discussion of these amendments, see
Lawrence E. Sellers, Jr., The Third Time's
the Charm: Florida Finally Enacts
Rulemaking Reform, 48 FLA. L. REV. 93
(1996); James P. Rhea & Patrick L. "Booter"
Imhof, An Overview of the 1996 Adminis-
trative Procedure Act, 48 FLA. L. REV. 1
(1996).
4 At the time this article was written, CS/HB
107 had not yet been assigned a chapter law
number, and environmental interest groups
were urging Governor Jeb Bush to veto the
measure. Current information is available
at the Florida Legislature's web site
.
s The Senate companion, CS/CSISB 206, was
sponsored by Senator Johb Laurent.
SE.g., General Telephone Co. of Florida v.
Florida Public Service Commission, 446
SSo. 2d 1063 (Fla. 1984); Department of La-
bor and Employment Security v. Bradley,
636 So. 2d 802 (Fla. 1st DCA 994, Florida
Waterworks Association v. State Public Ser-
vice Commission, 473 So. 2d 237 (Fla. st
DCA 1985); Department of Professional


Regulation v. Durrani, 455 So. 2d 515 (Fla.
1st 1984); Agrico Chemical Co. v. Florida
Department of Environmental Regulation,
365 So. 2d 759 (Fla. 1st DCA 1978); Florida
Beverage Corp. v. Wynne, 306 So. 2d 200
(Fla. 1st DCA 1975).
7 FLA. STAT. 120.52(8) and 120.536(1).
s Id., FLA. STAT. 120.52(8) and 120.536(1).
9 717 So. 2d 72 (Fla. 1st DCA 1998), rev. de-
nied 727 So. 2d 904 (Fla. 1999). For a discus-
sion of the court's ruling, see Note, St. Johns
River Water Management District v. Con-
solidated-Tomoka Land Co.: Defining
Agency Rulemaking Authority Under the
1996 Revisions to the Florida Administra-
tive Procedure Act, 26 FLA. ST. U. L. REV. 517
(1999).
10 717 So. 2d at 79.
1 Consolidated-Tomoka Land Co. v. St.
Johns River Water Management District,
DOAH Case No. 97-0870RP at 48 (final or-
der entered June 27, 1997).
" 717 So. 2d at 80 (emphasis supplied). On
the same day it issued its opinion in Consoli-
dated-Tomoka Land Co., the appellate court
also decided another case involving the ap-
plication of the 1996 limits on agency
rulemaking authority. In that case, how-
ever, the court affirmed the administrative
lawjudge's order invalidating a proposed rule
authorizing searches of persons and places
within permitted pari-mutuel wagering fa-
cilities. Department of Business and Profes-
sional Regulation v. Calder Race Course,
Inc., 724 So. 2d 100 (Fla. 1st DCA 1998). In
the only other reported appellate case inter-
preting the 1996 limits on agency
rulemaking authority, the court also invali-
dated the challenged rule. St. Petersburg
Kennel Club v. Department of Business and
Professional Regulation, 719 So. 2d 1210
(Fla. 2d DCA 1998).
" Sections 2 & 3, CS/HB 107, to be codified
at FLA. STAT. 120.52(8) and 120.536(1).
14 See notes 1 & 2, supra.
SSee Section 3, CS/CS/206, at p. 5.
1 Section 1, CS/HB 107.
7 Section 3, CS/HB 107, to be codified at FLA.
STAT. 120.536(2)(b) and (3).
" By October 1, 1999, each agency shall pro-
vide to the Joint Administrative Procedures
Committee a listing of each rule adopted by
that agency before the effective date of the
bill that exceeds the grant of rulemaking
authority. During the 2000 Regular Session,
the Legislature is to consider whether spe-
cific legislation authorizing the identified
rules should be enacted. By January 1, 2001,
each agency must initiate proceedings to
repeal each rule identified as exceeding the
rulemaking authority permitted by CS/HB
107 for which authorizing legislation does
not exist. Id.
"I Sellers, supra note 3, at 123-130.
SFLA. STAT. 120.56(2Xc).
n Id., 120.56(2Xa).
"Id.
2 Consolidated-Tomoka Land Co. v. St.
Johns River Water Management District,
DOAH Case No. 97-0870RP [19 FALR 2663]
(final order entered June 27, 1997).
S717 So. 2d at 76-77. For a discussion of the
order of presentation and the burden of
proof in proceedings invo challenges to
proposed rules, see Kent We What is
the Burden of Proof in Cases Involving Chal-


lenges to Proposed Rules, and Who Has it?,
19 Administrative Law Section Newsletter
9 (Sept. 1998); Edwin A. Bayo & John R.
Rimes, Who Goes First and What is "Com-
petent, Substantial Evidence" in a Proposed
Rule Challenge?, 73 FLA. B. J. 62 (Jan. 1999).
26 Section 5, CS/HB 107, to be codified at FLA.
STAT. 120.56(2Xa).
6 FLA. STAT. 120.56(2Xa).
2 Board of Clinical Laboratory Personnel v.
Florida Ass'n of Blood Banks, 721 So. 2d 317
(Fla. 1st DCA 1998).
" Section 5, CS/HB 107, to be codified at FLA.
STAT. 120.56(2Xa).
9 Section 6, CS/HB 107, to be codified at FLA.
STAT. 120.57(1X1). The Legislature thus
adopts the interpretation advanced by Judge
Benton in his dissenting opinion in Depart-
ment of Children & Families v. Patricia
Mormon dib/a Patti Cake Nursery, 715
So. 2d 1076, 1078-79 (Fla. 1st DCA 1998), as
opposed to the view expressed by Judge
Ervin in his concurring opinion in that same
case, 715 So. 2d at 1077-78.
0 E.g., Alles v. Department of Professional
Regulation, 423 So. 2d 624 (Fla. 5th DCA
1982).
31 Section 6, CS/HB 107, to be codified at FLA.
STAT. 120.57(1X1). As originally filed, the bill
would have limited the agency's authority to
rejecting or modifying only those "clearly
erroneous" conclusions of law and interpre-
tation of administrative rules. Section 4,
HB 107 at p. 5. This language was revised in
order to address objections raised by the
Governor's Office.
2 Gulfstream Park Racing Ass'n v. Depart-
ment of Business Regulation, 407 So. 2d
263, 265 (Fla. 3d DCA 1981).
" The Environmental Trust v. Department
of Environmental Protection, 714 So. 2d
493, 500 (Fla. 1st DCA 1998). For a more
detailed discussion of the court's ruling on
this point, see Ralph A. DeMeo, Environ-
mental Trust v. Department of Environ-
mental Protection: Who Do You Trust?, 20
Administrative Law Section Newsletter 3
(March 1999).
34 Section 4, CS/HB 107, to be codified at FLA.
STAT. 120.54(1Xf).
3 FLA. STAT. 120.68(7Xd).
"6 See, e.g., F. Scott Boyd, A Traveler's Guide
for the Road to Reform, 22 FLA. ST. U. L. REV.
247, 261 (1994).
" E.g., Smith v. Crawford, 645 So. 2d 513,
520 (Fla. 1st DCA 1994); Harloff v. City of
Sarasota, 575 So. 2d 1324,1327 (Fla. 2d DCA
1991), rev. denied, 583 So. 2d 1035 (Fla.
1991); Department of Environmental Regu-
lation v. Goldring, 477 So. 2d 532, 534 (Fla.
1985).
38 Chiles v. Department of State, 711 So. 2d
151, 155 (Fla. 1st DCA 1998); D.A.B. Con-
structors, Inc. v. Department of Transpor-
tation, 656 So. 2d 940, 944 (Fla. 1st DCA
1995); Orange Park Kennel Club, Inc. v. De-
partment of Business and Professional
Regulation, 644 So. 2d 574, 576 (Fla. 1st
DCA 1994).
SE.g., Section 6, CS/SB 206 at p. 10.
" Section 2, CS/HB 107, to be codified at FLA.
STAT. 120.52(lXb)2.

SSection 7, CS/HB 107, to be codified at FLA.
STAT. 120.81(lXa).









The Florida Watershed Restoration Act:

Total Maximum Daily Loads

by Philip Moffat, Student, Levin College of Law, University of Florida


Background
Prior to 1972, states exercised au-
thority over the protection of purely
intrastate waters through water qual-
ity standards and common law doc-
trines. Viewed as a resource for waste
assimilation, those who used the re-
source logically had control over ef-
forts to ensure water quality. While
logical and widely supported from its
inception, this approach failed to of-
fer the desired level of protection as
the political climate changed in the
early 1970's. Faced with ubiquitous
deteriorating water quality in 1972,
the US Congress adopted a new strat-
egy for water pollution control. The
resulting provisions developed as a
tradeoff between the Senate, which
unanimously favored technology-
based standards, and the House of
Representatives which primarily fa-
vored water quality standards-based
approaches. Section 303(d) of the
Clean Water Act (33 U.S.C. 1313
(d)) offered a compromise, allowing
the federal government to establish
technology-based effluent limitations
for point source dischargers while
preserving state authority over the
establishment of water quality stan-
dards.
Section 303(d) has a simple logic.
If technology standards fail to ad-
equately implement applicable water
quality standards, states must iden-
tify the impaired water bodies or wa-
ter body segments. Once identified,
the waters are prioritized according
to the severity of the pollution and
their designated use. A total maxi-
mum daily load (TMDL) for the spe-
cific pollutant causing the violation
will be developed to implement the
standard. Each TMDL will account
for seasonal variability and a margin
of safety to accommodate any lack of
knowledge concerning the relation-
ship between effluent limitations and
water quality. Furthermore, states
are required to submit the list and
established loads to the Administra-
tor from time to time.
While providing a clearly pre-


scribed mandate, Section 303(d) re-
mained largely ignored for well over
a decade. However, in the early
1980's a series of citizen suitsforced
EPA to establish TMDLs when states
refused to act. In Scott v. City of
Hammond, 741 F.2d 992 (7t Cir.
1984), the Seventh Circuit reasoned
that a prolonged failure of a state to
submit TMDLs amounted to a "con-
structive submission" of no TMDLs,
requiring EPA to act if the submis-
sion proved inadequate. A series of
similar suits followed, forcing EPA to
take action if a state had taken none.
Yet ifa state had taken some action,
the constructive submission theory
frequently failed. In recent cases, in-
cluding, Sierra Club v. Hankinson,
939 F. Supp 872 (N.D. Ga. 1996),
minimal state effort prompted tighter
schedules for completing the TMDL
process. Because of similar deficien-
cies, numerous suits are active na-
tionwide. In April 1998, Earthjustice
Legal Defense Fund filed a civil ac-
tion on behalf of the Florida Wildlife
Federation and others, alleging that
EPA had failed to enforce Florida's
obligations under Section 303(d).
Settlement negotiations are ongoing.

CS/SB 2282 and CS/HB 2067
Since 1992, DEP has submitted
four lists of waters which potentially
are nonattainment for water quality
standards, each with increauiuaga -
bers and tighter schedules for imple-
mentation. The 1998 list received fi-
nal EPA approval with 709 ptentially
impaired waters and a thirteen-year
schedule for TMDL development and
implementation. Recognizing the
need for quality assurance and cost-
effectiveness, the Florida Legislature
responded in 1999 with CS/SB 2282
and CS/HB 2067. The bills contained
identical language, creating the
"Florida Watershed Restoration Act"
within Chapter 403, Florida Statutes
(F.S.). The Act becomes effective
upon becoming law. The bills
amended Section 403.031, F.S., and
created Section 403.067, F.S. The


amendment added the definition of
total maximum daily load, which is
defined to include the sum of
wasteload allocations for point
sources and load allocations for
nonpoint sources and natural back-
ground conditions. Section 403.067,
F.S., created a complex and time-in-
tensive process with numerous points
of entry for TMDL development and
implementation.
The Act's Legislative Findings
mandate a cost-effective approach
coordinated between contributing
point and nonpoint sources. Further-
more, DEP is clearly charged with
responsibility f6r overseeing the pro-
gram in cooperation with the water
management districts (WMDs), the
Department of Agriculture and Con-
sumer Services (DACS), local soil and
water conservation districts, environ-
mental groups, and regulated inter-
ests. However, the Act merely pro-
vides DEP with the statutory
authority to conduct TMDL assess-
ments according to the initial prior-
ity listing. The Act does not neces-
sarily compel DEP to develop TMDLs
for all 709 waterbodies. In fact, the
Act's considerations virtually guaran-
tee a reduction in waters listed.
These procedures create two lists,
one initially submitted to EPA com-
mittiig DEP to assessing the need for
TMILs and one for which TMDLs
wilU i established. Having not un-
degone the prescribed procedures,
the iaitiakttg cannot be used in
ti. ap-pin ton of any reoula-
toryt .S L '-
. mm~t.meutioogy for
dctermniiag.ifsaterbodies are im-
paired must be developed by rule. A
nonattainment determination is to be
based on objective, credible data,
studies and reports, including Surface
Water Improvement and Manage-
ment (SWIM) plans and Pollution
Load Reduction Goals (PLRG'), if
available. In determinif that a wa-
ter body is impaired, DEP must
specify the particular pollutant and
continued, next page


e


I








the concentration causing the impair-
ment. If numeric standards have been
established, narrative or biological
criteria may not be used without suf-
ficient justification; f a waterbody is
impaired and otherpollution control
programs, including Everglades res-
toration and National Estuary Pro-
gram activities are insufficient to
achieve water quality compliance,
then DEP will establish the second
list which will include waters where
a TMDL will be calculated along with
a priority ranking, and a schedule.
Furthermore, if it is later proven
that water quality standards are be-
ing attained, the waters may be re-
moved from the list. Likewise, if a
water is later impaired, it may be
added.
The TMDL calculations will be co-
ordinated with the appropriate local
governments, WMDs, DACS, local
soil and water conservation districts,
environmental groups, and regulated
interests. Eight specific criteria are
to guide DEP during the allocation
process, including: existing treat-
ment levels and management prac-
tices; differing impacts from sources;
the availability of reduction technolo-
gies or management practices; envi-
ronmental, economic and technologi-
cal feasibility; costs and benefits;
reasonable time frames for imple-
mentation; potential applicability of
moderating provisions; and the extent
of nonattainment caused by inter-
state sources, previous alterations or
discontinued discharges. Further-
more, the DEP must hold at least one
public hearing in the area for which
the daily load and allocations are be-
ing established.
A variety of water quality protec-
tion programs may be used to imple-
ment TMDLs, including: regulatory


and permit programs; nonregulatory
and incentive-based programs; SWIM
plans; legally binding and trackable
pollutant trading systems and other
economic programs; public works
projects; and land acquisition pro-
grams. DEP intends to employ a ba-
sin planning process to coordinate
the different strategies, consulting
with a broad array of interests while
attempting to build consensus. Point
sources will implement the alloca-
tions through the NPDES perriiitting
process. Pollutant sources exempt
from permitting under Chapter 373
have the opportunity to implement
their allocation through nonregu-
latory and incentive-based programs.
Nonagricultural, nonpoint sources
will be given the opportunity to imple-
ment allocations through best man-
agement practices (BMPs) estab-
lished by DEP or water management
district rule. DACS is given rule-mak-
ing authority to establish best man-
agement practices for agricultural
nonpoint sources. CS/CS/SB 908
(Florida Forever Act) earmarks $5
million for the development of best
management practices, allotting $2.5
million to BMP development for ag-
ricultural nonpoint sources and $2.5
million for nonagricultural, nonpoint
source BMP development. As an in-
centive for compliance with pre-
scribed nonpoint source allocation
methods, the Act provides a presump-
tion of compliance with state water
quality standards while limiting
DEPs ability to proceed against an
owner for contamination. Addition-
ally, TMDL implementation will not
limit the applicability of mixing zones
or other moderating provisions.
The Act also creates two reporting
requirements for DEP. In 2000, DEP
must submit to the Governor, the


President of the Senate and the
Speaker of the House suggested leg-
islation, recommending any addi-
tional considerations for developing
TMDL allocations. In 2005, DEP must
submit a report to the same legisla-
tive and executive members, evalu-
ating the effectiveness of the imple-
mentation process for five years
subsequent to the Act's effective date.

Conclusion
CS/SB 2282 and CS/HB 2067 pro-
vide DEP with the statutory author-
ity to conduct the Total Maximum
Daily Load process for the protection
of a vital state resource. Upon becom-
ing law, DEP, with cooperation from
other stakeholders, will assess poten-
tially water quality impaired areas
and attempt to develop appropriate
methods for their restoration. The
Florida Legislature wisely recognized
the potential administrative and fi-
nancial burden of conducting the
TMDL process for 709 waters. The
"Florida Watershed Restoration Act"
clearly acknowledges the need for a
cost-effective and quality-assured pro-
cess, preventing unnecessary list-
ings, regulations, and economic hard-
ship. However, given the myriad
points of entry and the potential eco-
nomic impacts of TMDL allocations,
the establishment and implementa-
tion process for the numerous waters
is likely to be time consuming and
costly. Nonetheless, the public and
regulated community should take
comfort that their due process inter-
ests are adequately protected. The
opportunities for input will help en-
sure that the TMDL allocations have
been justified sufficiently, offering all
interests the opportunity to provide
a solid scientific foundation.


Mark your calendars!

Plan to attend the


1999 annual Update

August 19-21, 1999, Ritz-Carton, Amelia Island
Brochure coming soon!Wath your mail!


i










The University of Florida Levin College of Law

Public Interest Environmental Conference
March 2000 -

Philip Moffat and Jody Brooks Conference Co-Directors
Thomas T. Ankersen, Alyson Flournoy, Richard Hamann and Jeff Wade Faculty Advisors

The Environmental and Land Use Law Society (ELULS), through its Public Interest Environmental
Conference Committee (PIECC), will host the Sixth Annual Environmental Conference in March 2000.
Organized and run by students at the law college, it has matured into one of the premier fora for
exploring the key environmental and land use topics of our time. The conference is fully-integrated into
the College of Law through its new Environmental and Land Use Law Program. Students receive aca-
demic credit through an independent study for researching and developing substantive topics for the
conference. Each year, members of The Florida Bar provide valuable expertise by assisting in the
development of panel topics and participating in the panel discussions.

While focusing on public interest issues, the PIECC believes the public interest is best represented
when all interest groups are given the opportunity to engage in spirited discussion. The goals of the
conference include: 1) increasing public and professional knowledge of environmental and land use
issues and applicable laws in Florida; 2) empowering citizens with the skills and knowledge necessary
to impact the decision-making processes; and 3) exploring new approaches to complex environmental
problems. This year's conference will again provide an array of educational opportunities to meet these
goals.

Conference support is provided by the Public Interest Committee of the Environmental and Land Use
Law Section of The Florida Bar, U.S. E.P.A. Region IV, private foundations, the University of Florida
Board of College Councils, and individual donors. Continuing Legal Education Credits are available for
legal practitioners. The Conference provides a wide-range of topics and speakers of interest to citi-
zens, industry representatives, students, politicians, regulators and academicians. Environmental Jus-
tice, Water Law, Growth Management, and International Environmental Law are among the expansive
lists of previous topics.

In March 2000, the conference will focus on some of the cultural and natural resources that make
Florida unique and the pressures that are continuously exerted upon them. The thematic focus of the
conference is developed through a series of conversations among students, faculty, and practitioners.
The different topics may have an academic or practical component or both. We are also reinventing the
conference each year by exploring new approaches to stimulate discussion and foster the develop-
ment of workable solutions. We welcome suggestions for topics, self-organized sessions, and keynote
speakers. Our keynote speakers are typically nationally prominent figures who bring new perspectives
to Florida's environmental and land use dilemmas. Additional information can be obtained in future
issues of the Environmental and Land Use Law Section Reporter, by contacting one of us at (352) 392-
2237, or by visiting our website at http://grove.uff.edu/-els/.
. Ill I II









Focus on iE 1413/HB 2231/SB 2352 and CS/CS/SB 1566

Sby Maribel Nicholon-Choice, Greenberg Traurig, P.A.


The Florida Community
Health Protection Act
HB 2231 became the vehicle for
passage of the Florida Community
Health Protection Act, which was ini-
tially proposed as HB 1413 sponsored
by Representative Rudy Bradley (R)
of St. Petersburg and SB 2352 spon-
sored by Senator Jim Hargrett, Jr.
(D), of Tampa. As a result of commu-
nication and compromise among di-
verse stakeholders ranging from
community groups to industry, these
once controversial environmental
justice bills became consensus legis-
lation intended to provide primary
public health care access to the poor
and people of color living in urban and
rural communities. HB 2231 estab-
lishes community health pilot projects
in the Greenwood Community Health
Center in the City of Clearwater; the
Miles Health Center in Broward
County; the Palafox Redevelopment
Area in Escambia County; the Chal-
lenge 2001 Area in St. Petersburg;
low-income communities in the City
of Riviera Beach; and through the
Urban League mobile health unit
serving Hillsborough, Pasco, Pinel-
las, and Manatee counties. The com-
munity health pilot projects have
been established to promote disease
prevention and health promotion


among the poor and people of color,
including Asians, African-Americans,
and Latinos living in urban and rural
communities. The Department of
Health ("DOH") is responsible for
overseeing these pilot projects The
funding source for the community
health pilot projects is expected to be
a combination of state and federal
dollars. DOH is required to submit a
report to the President of the Sen-
ate, the Speaker of the House of Rep-
resentatives, and the Governor on
the findings, accomplishments, and
recommendations ofthe pilot projects
by January 1, 2002.

Front Porch Florida
CS/CS/SB 1566 creates the Office
of Urban Opportunity within the
Governor's Office of Tourism, Trade,
and Economic Development. The
Governor has reportedly appointed
the Director of the Office of Urban
Opportunity. The Director is respon-
sible for overseeing implementation
of the Front Porch Initiative, an ur-
ban redevelopment program. The
name of this initiative projects a posi-
tive image of hopefully restoring eco-
nomically depressed and crime ridden
urban neighborhoods so that children
will be safe playing on their front
porch. The working plan for the Front


Porch Initiative is to designate three
Front Porch Communities this year,
and a total of 20 by the year 2002.
The Office of Urban Opportunity will
serve as a bridge between the Front
Porch Communities and economic re-
development. This program is ex-
pected to facilitate the issuance of
Inner City Economic Redevelopment
Grants; Microcredit Loans; Black
Business Investment Loans; and Low
Income Rental Housing Tax Credits
to urban communities. The Front
Porch Initiative also contains compo-
nents to promote brownfield cleanup,
job creation, home ownership, and
mentoring programs in urban com-
munities.


Maribel Nicholson-Choice is a ten-
year environmental and land use at-
torney with the Greenberg Traurig law
firm and is a member of the Executive
Council of the ELULS. Her primary
practice concentrations are in the ar-
eas ofhazardous waste regulation, air
and water quality regulation, environ-
mental justice law, brownfields rede-
velopment, and environmental legis-
lation. During the past session, she
represented industry and local govern-
ments interests on brownfields and
environmental justice legislation.


* U
* U
* U
* U


a What's Up forFlorida's Future?
and beyo nid.:': A highlight of the 1999 Annual Update will be a panel including repre-
S: sentatives from DEP and DCA, and Everglades Policy-Drector J. *
Allison DeFoor sharing their perspective on the state's environmental
and land use policy in the new millennium. Check the Section's website
~ at www.eluls.org for additional details.
* U

c U
. ".- i-

* UilD


I 1









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