ENVIRONMENTAL ISSUES

Water Supply - Local Sources First.  SB 312 amends Part II of Chapter 373, Florida Statutes.  The proposal requires several factors to be balanced to determine whether the proposed transport of surface or ground water is consistent with the public interest.  These include the proximity of the source to the user, other economically, environmentally, or technically feasible alternatives and cumulative impacts of groundwater withdrawal. 

The House Committee on Water and Resource Management also is preparing "local sources first" legislation of its own.  The legislation will be based on voluminous research into stakeholder views of criteria for applying a "local sources first" analysis to the consumptive uses of water.

Everglades.  The Supreme Court has held that Amendment 5 (Polluters Pay) is not self executing and thus the Legislature must enact legislation to implement it.  The Legislature will be struggling with how to implement Amendment 5.  There is an outside possibility that the Legislature will not adopt implementing legislation since historically, the Legislature has been slow to enact implementing legislation when new constitutional provisions are adopted.

State Lands Management.  Chapter 97-164 was passed by the 1997 Legislature.  Its essential thrust was to comprehensively manage existing state lands, allow multiple uses of such lands and to privatize operations on certain of the properties.  No comprehensive change is anticipated this year.

P2000.  The House Environmental Protection Committee will conduct hearings on the operation of the P2000 plan in January and February of 1998.  Discussions will also be had on extension of the program. 
 
Greenways.  The Department of Environmental Protection (DEP) has proposed amendments to Chapter 253, Florida Statutes.  The amendments provide rulemaking authority allowing the Office of Greenways and Trails and the Division of Marine Resources Management authority to manage lands which are under their jurisdiction.  No House or Senate bill has been filed.

There is a potential legislative issue related to mapping greenways, trails and other public lands.  Private landowners (particularly agricultural and forestry interests) are concerned that maps identifying areas for future acquisition amount to a reservation placed on the property.

Beach Management/Renourishment.  DEP has determined that Florida's critically eroding beaches will require $35 million annually for the next 20 years for maintenance.  In 1997, Committee Substitute for HB 103 directed DEP to comprehensively plan for the management of these beaches and to find a dedicated funding source.  DEP is developing legislation that will be available shortly.

Dry-Cleaning Site Cleanup Program.  An interim project for the Senate Natural Resources Committee is the review of Florida's dry-cleaning site cleanup program.  The objectives of the project are to address the concerns that have been raised regarding inadequate funds from the industry to offset the total immunity granted for cleanup costs, and to determine if safeguards are in place to prevent fiscal problems such as those that have occurred in the petroleum cleanup program.

Title V Permit Fees.  The DEP has made a finding that there is a shortfall in the Title V Fees Trust Fund.  This is the first step in a process which could lead to an increase in the annual $25 per ton of pollutant fee charged to affected industries.

CAA/Auto Emissions Inspections.  The House and Senate are both looking at legislation designed to reauthorize the current auto emission testing programs that are operated in non-attainment counties.  CS/HB 1377 is ready for House floor action in March.  Senate PCB 2 (Transportation) is the current Senate Bill.

Recycling Grants/SWMTF Review Commission.  The Legislature created a Solid Waste Management Trust Fund Review Commission and directed the Commission to consider, among other things, alternative funding strategies for meeting the needs of solid waste management, the SWIM program and aquatic weed control.  The Commission is required to submit its report by January 30, in time for consideration during the 1998 legislative session.  Watch for this issue to be debated again in 1998.

Review of Solid Waste Act.  The staff of the House Environmental Protection Committee also has undertaken a comprehensive review of Florida's Solid Waste Management Act.  It is unclear whether any substantial changes to the Act will be proposed as a result of this review.

Litter Study/ADF.  DEP is required to contract for an ongoing annual litter survey.  Each year, DEP is to evaluate the information provided in the survey.  The agency then is to review these surveys and make recommendations to the Governor and to the Legislature for the designation by law of containers, product packaging or items found in the litter stream that should be subject to an advance disposal fee (ADF).  A baseline survey was conducted in 1994, and annual studies have been conducted every year since then.  The 1997 survey indicates a statistically significant increase in the amount of large litter items found on Florida's roadsides.  The state certainly is not making any substantial progress toward the 50-percent litter reduction goal that was established in 1993.  As such, this could cause DEP to recommend that food take-out containers, beverage containers, product packaging or other items found in the litter stream should be subject to an ADF.

Delegation of Hazardous Waste Corrective Action Program to DEP.  SB 488, by Senator Foreman, is designed to accomplish those statutory changes needed to allow DEP to accept delegation of the federal corrective action program.

Risk Management Delegation (112r Program) to DCA.  The State Emergency Response Commission (SERC) and the staff of the Department of Community Affairs have been developing draft legislation that would provide for the state implementation of the accidental release prevention and risk management requirements of Section 112(r) of the Clean Air Act amendments.

Environmental Self-Audit Privilege.  Some twenty states reportedly have adopted legislation relating to environmental self-audits.  In addition, both EPA and DEP have adopted self-auditing "policies" that are generally considered unworkable by the business community.  This issue will be on the table again in 1998, with particular focus on the extent of any privilege.  Several groups are exploring possible alternative means of addressing the privilege issue in a way that may be acceptable to opponents and still do the job for the business community.

Environmental Equity & Justice.  The Environmental Equity and Justice Commission was created to examine whether there is a disproportionate and cumulative concentration of environmental hazards near people of color and low-income communities.  The Commission issued a report that includes a number of legislative recommendations.  One recommendation would require the state to define "environmentally overburdened neighborhoods" and would authorize local governments to limit future siting in these areas.  Another recommendation would require local governments to incorporate environmental equity concerns in land use planning and zoning decisions.  Other recommendations address notice to neighbors, relaxed standing provisions, and a state ombudsman to protect the interests of minorities.  Representative Eggelletion and Senator Turner served on the Commission.  They both filed legislation on this subject during the 1997 Regular Session, but none of the significant recommendations were enacted.  Look for these measures again in 1998.

Water and Wastewater Utility Regulation by PSC.  House Bill 3185 has passed the House Utilities Committee.  This bill would require the Public Service Commission to allow investor-owned water and wastewater utilities to fully recover environmental compliance costs from their customers.  It also would increase the "margin reserve" that a utility is allowed to recover from 18 months to five (5) years, thus allowing for the construction of larger, more economical facilities. 

Property Rights.  Representative Adam Putnam has introduced House Bill 1889 which would extend the laws, rules and ordinances which are covered by the Bert Harris Act to include all of those which had been enacted subsequent to 1990.  This represents a five (5) years extension of the Bert Harris Act coverage and appears to be consistent with the fact that less than 20 Bert Harris cases have been brought forth since the act became effective in October of 1995.

Orimulsion.  Several legislators have introduced legislation which would make it more difficult for Florida Power & Light to convert its Manatee plant from high cost oil to lower cost fuel known as orimulsion.  These bills include Senate Bill 98 by Crist and House Bill 3157 by Representative Murman.  This controversial issue will obviously be considered by the Legislature in one form or another.  Currently, FP&L's project is scheduled for rehearing before the State Administrative Law Judge on January 15, 1998.

Water Management Districts.  HB 1951, by Representative Bronson, and SB 102, by Senator Bronson, would convert the five water management districts to state agencies.  The Secretaries of the districts would be appointed by the Governor and confirmed by the Senate.  Two related resolutions -- Senate Joint Resolution 100 and House Joint Resolution 1417, by Representative Bronson and Senator Bronson -- would provide constitutional amendments that allow the increase in executive departments from 25 to 30.
 
Water Control Districts.  Last year, the Legislature passed Chapter 97-40, extensively revising Florida's water control district act, Chapter 298, Florida Statutes.  The proposal to be filed this year is a glitch bill dealing primarily with elections, the levy of assessments and the ability to provide certain infrastructure within the boundaries of a district.

Risk Assessments.  The Risk-Based Priority Council was created for the purpose of recommending guidelines for conducting risk analyses in conjunction with the administrative rulemaking process.  The Council released a report recommending that the Legislature:  (1) create a Science Advisory Board; (2) provide adequate funding for state agencies to conduct risk analyses; (3) provide funding so that citizens groups may participate in the process; and (4) extend the risk impact statement requirement to other relevant agencies (other than DEP and DACS).  Legislation implementing the recommendations of the Risk-Based Priority Council came very close to passage in 1997.  The House bill remains alive (under the new House rules), so look for this legislation to again receive serious consideration in 1998.

APA/Legislation Resulting from Review of Agency Rules.  The 1996 amendments to Florida's Administrative Procedure Act (APA) impose significant new restrictions on agencies' rulemaking authority.  The amendments also establish a process by which each agency is to review its previously-adopted rules and to identify any that exceed this rulemaking authority as now limited.  By October 1, 1997, each agency was to provide the Joint Administrative Procedures Committee with a listing of each rule, or portion thereof, that exceeds these new rulemaking standards.  During the 1998 Regular Session, the Legislature is to consider whether specific legislation authorizing the identified rules, or portions thereof, should be enacted.  If such legislation is not enacted, then each agency must, by January 1, 1999, initiate proceedings to repeal these rules.

APA/Third Party Challenges.  Last year, Representative Spratt was concerned that the state was missing significant economic development opportunities because of delays associated with third-party challenges to environmental permits.  Accordingly, he filed legislation (HB 1409) that was designed to eliminate unsubstantiated or otherwise frivolous challenges to permits issues under Chapter 373 or Chapter 403.  Look for this or similar legislation to continue to receive attention in 1998.

Anti-SLAPP.  SB 272, by Senator Grant, would create the "Citizen Participation in Government Act" and purportedly is designed to provide for speedy adjudication of so-called "Strategic Lawsuits Against Public Participation" (or SLAPP suits).  These "SLAPP" suits occasionally have been used to discourage persons who aggressively and repeatedly urge government to deny or otherwise take unfavorable action on the regulatory approvals that may be required for a new or expanded business.  SB 272 provides immunity from civil liability for persons who are "participating in the processes of government."  The bill also establishes certain procedures that will apply to motions to dispose of a claim in a judicial proceeding on the ground that the claim is based on, relates to, or is in response to any act of the moving party in furtherance of that party's right to participate in the processes of government.  Among other things, these procedures require the court to award a moving party the cost of litigation, including reasonable attorney's fees and witness fees, and such additional sanctions upon the responding party, its attorneys, or law firm as the court finds will be sufficient to deter repetition of such conduct and comparable conduct by others similarly situated.  Similar anti-SLAPP legislation was filed several years ago, apparently at the behest of Attorney General Bob Butterworth.  This legislation was controversial, and it was not enacted.

Tax Exemption for Pollution Control Equipment.  Representative Thrasher, Senator Horne, and Senator Dyer have all introduced legislation which would exempt pollution control equipment from the sales tax.  Each of the Bills are slightly different, but all have the same thrust.

Confirmations - ERC/Water Management Districts.  The Governor appoints members of the Environmental Regulation Commission and the five water management districts.  A number of recent appointments are pending confirmation by the Florida Senate.  In the past, some of these appointments have been controversial.

LAND USE ISSUES

School Concurrency.  The Public Schools Construction Study Commission created by the Legislature last year unanimously adopted recommendations for statutory requirements on local-option school concurrency.  These recommendations ensure that school concurrency would be based upon a financially feasible school board plan to actually build needed schools.  They also recommend a three-year availability standard for communities which adopt school concurrency.  The Commission also recommended ways to achieve closer coordination between land use and school facility planning. 

Platting.  HB 3223, by Representative Dockery, and SB 406, by Senator Clary, are a comprehensive revision to Florida's general platting law, Chapter 177.  Of particular note are extensive changes to definitions that provide standards for monuments, surveys and for professional surveyors.  Further, in the future all plats and replats will require a boundary survey by a professional surveyor.  Any plat or replat must, in addition, be reviewed by a surveyor, retained by the local government reviewing the plat.  The applicant is required to pay for the cost of the plat or replat as well as the plat review by the local government.  Extensive new technical standards for plats are included in the bill.  A replat now will take the place of all previous plats.

Streamlining the DRI Process.  The Department of Community Affairs has proposed to abolish the State Land Development Plan which is sometimes used in the review of DRIs.  DCA also is working with local governments to prepare a proposed optional alternative to DRI review that would include incentives for developers.  DCA has not made public any draft legislation on either issue at present.

LULUs/Telecommunications Towers.  HB 3291, by Representative Valdez (the Telecommunications Right-of-Way Act) establishes legislative intent that telecommunications businesses are in the public interest and the telecommunications providers will be entitled to use public rights-of-way without further consent by local government.  Local governments would not be allowed to assess fees, taxes or charges for the privilege of conducting telecommunications business within the jurisdiction of a local government.  In addition, it is anticipated that the House Community Affairs Committee will have a more detailed telecommunications tower siting proposal available in the near future.

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For copies of House bills, call 850/488-7475.  For copies of Senate bills, call 850/487-5285.  Bills also are available via the Internet at http://www.leg.state.fl.us (filed and enrolled bills) and http://election.dos.state.fl.us (chapter laws).

Robert Manning is an Associate with Hopping Green Sams & Smith, P.A. in Tallahassee, Florida.  He received his B.A. from the University of Florida and his J.D. from the University of Tennessee.  Robert practices primarily in the areas of air and water quality regulation and permitting.