Title: Report Of The Minority of the Environmental Efficiency Study Commission
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00002875/00001
 Material Information
Title: Report Of The Minority of the Environmental Efficiency Study Commission
Physical Description: Book
Language: English
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Report Of The Minority of the Environmental Efficiency Study Commission
General Note: Box 11, Folder 7 ( Environmental Efficiency Study Commission - 1988 ), Item 4
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00002875
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text


David Gluckman
Marilyn Crotty
Carol Rist


Except in a few instances, the minority does not object to 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 1
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 an environmental
system can only be solved by a cohesive permitting and
enforcement system. This the majority failed to propose.


Florida is a unique state. It is located at a desert longitude get 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 gross 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 and game for sport.
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 polluted the clear lakes, streams and
^"s :



boys and poisoned the ground and waters with our chemical residues and
urban garbage. We have even dirtled the air we all breath.
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 this, 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. 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.


The April 1987 Report to the Florida Legislature correctly stated the
findings of the commission. Chairman Lenders 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 b the Legislature in the creation fthe
Commission are justified. We have heard testinme that the environmatal preces a
currently mointatod is inefficient, ametimes imeIteble, frequently dplicative,
expensive to both tmpqers and pr operty ars, cmftui and, a its verst, punitive.
Without mdlfiction of the current eatrnmatiel protection process, we re convinced
that the State's gPel of protectin its eavlrwmmen M seets nmVy t be fully reMad, that
precious finncidl ad humwn resources myg be Ippropr tely llocatd, nd 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 to agency enforcement

Although there were a small number of witnesses who testified at the
final public hearing in November 1987 that the system was functioning fine
and no elimination of duplication and inefficiencies were 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 Captiva, where the commission agreed to a complete system to
replace the multiple overlapping and disjointed laws. However, for reasons
partially stated below, 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.


Except in a few instances, the minority does not object to 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 mlnorelt Is that problems within an environmental
system con onig be solved bg a cohesive permlttlig and
enforcement uastim. 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


f il jurisdiction to the water management districts as part of a complete
system, we cannot n raove 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.
Second, wedo 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
We also do not support the convoluted rulemaking/leasing 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 this state. They should be responsible for the
management and leasing of these lands and 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. Since the Trustees have already begun to delegate some of
these small leases or consents of use to local authorities and will continue
to expand this program there is little need for legislation in this area.


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
disruptions 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
oronosed system cannot work. and. in fact. mau be counterproductive. if the
following conditions are not met before Imolementation.

1. Sufficient funding through ad valorem taxes, general revenue and users
fees must be 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 transferral of major permitting responsibilities from the Department of
Environmental Protection (formerly DER) to the environmental management
districts (formerly water management districts) will remove from DER/DEP
most of its permitting personnel except for projects that are proposed by
the districts. If DER/DEP has to continue permitting responsibilities in the
Northwest district as well, poor and confusing permitting will result in
north Florida.
4. DER/DEP must maintain a strong oversight role over the environmental
management districts. 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
DEP are properly applied. DEP would also perform economic as well as
performance audits and report its findings to the legislature each gear.
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 districts as well as DEP
permitting and animal protection decisions of the new Department of Fish
and Wildlife.
6. Appointments to all collegial bodies acting as heads of 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 EAS will be appointed by the Governor, Senate
President and Speaker of the House for designated terms. Appointees 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.


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

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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

1. Department of Environmental Protection (DEP) This is a new agency
created from the old DER. 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, 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
2. Environmental Management Districts (EtD) 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 ( ) 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 shall continue and expand Its role in maintaining,
expanding 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 end
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


""" *' *'* *"*"*Y

environmental management districts, relying on their environmental
assessments in decision making.
4. Department of Community Affairs (DCA) 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 Petrol 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 deny permits that will place the continued
existence of endangered species in jeopardy. It will be headed by a five
member appointed board.


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 rea 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 end
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 they should be allowed to set
standards at eny level stronger than the states they desire.

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