Political Composition of the 1999-2000 Legislature

The 1999 Regular Session, which begins on March 2, 1999, will mark the first time since Reconstruction that Florida has a Republican majority in the House and Senate and a Republican Governor at the same time. Conventional wisdom would suggest that business and development interests will fare well during this new Republican regime. However, the moderate platform upon which Governor Bush and many Republican legislators ran may result in a more balanced approach to environmental and land use issues than many expect.

Republicans gained seven seats in the House in the 1998 elections and now hold a 73 to 47 majority. While Republicans did not gain any seats in the Senate in the 1998 elections, they expanded their majority by a seat when Senator George Kirkpatrick (R-Gainesville and namesake of the former Rodman Dam), changed parties over the summer. The Republican majority in the Senate is 25 to 15.

John Thrasher (R-Orange Park) will be the House Speaker. Toni Jennings (R-Orlando) will serve a second term as Senate President. The Minority Leader in the House is Les Miller (D-Tampa), and the Minority Leader in the Senate is Buddy Dyer (D-Orlando).

Several notable former House members were elected to the Senate in the 1998 elections. Immediate past House Speaker Dan Webster (R-Orlando) was elected to the Senate without opposition. Lisa Carlton (R-Osprey), the immediate past chair of the House Water & Resource Management Committee, was also elected to the Senate without opposition. With the specter of term limits looming, another wave of House members, including current House Speaker Thrasher and House General Appropriations Committee Chair Ken Pruitt (R-Port St. Lucie) are expected to run for the Senate in 2000 or 2002. Incoming House Fiscal Responsibility Council Chair Jim King (R-Jacksonville), resigned from the House in January 1999 to run for the Senate seat vacated by Senator Bill Bankhead (R-Jacksonville), who was appointed Secretary of the Department of Juvenile Justice by Governor Bush.

Key Committee Chairs

Senate President Jennings and House Speaker Thrasher appointed their committee chairs during the Organization Session held in November, 1998. The chairs of the committees through which most environmental and land use legislation pass are:

House

Environmental Protection Rep. Paula Dockery (R-Lakeland)

Water & Resource Management Rep. J.D. Alexander (R-Winter Haven)

Community Affairs Rep. Greg Gay (R-Cape Coral)

Senate

Natural Resources Sen. Charles Bronson (R-Indian Harbour)

Comprehensive Planning, Local & Military Affairs Sen. George Kirkpatrick (R-Gainesville)

The House Council structure established in 1997 by then-Speaker Webster was retained by Speaker Thrasher, but the role of the Councils has been tempered by a stronger Rules & Calendar Committee. The Environmental Protection and Water & Resource Management Committees are within the Resource and Land Management Council chaired by Lee Constantine (R-Altamonte). The Community Affairs Committee is within the Public Responsibility Council chaired by Bill Sublette (R-Orlando).

Other Factors Impacting the Environmental Issues Considered in 1999 Session

There are several other factors which should be noted when evaluating the potential environmental and land use legislative issues for the 1999 Session. First, the Departments of Community Affairs and Environmental Protection have new Secretaries. Steve Seibert, a County Commissioner from Pinellas County was appointed to replace Jim Murley as Secretary of DCA. David Struhs, formerly the head of the Massachusetts Department of Environmental Protection, was appointed to replace Virginia Wetherell as Secretary of DEP. During the first year of an administration, it is typical for new agency heads to propose a very limited legislative agenda. Aside from the extension of Preservation 2000 and the Everglades (see below), Governor Bush’s legislative focus is expected to be on education rather than environmental issues during the 1999 Session.

Second, the Governor and Cabinet, which serves as the collegial head of various state agencies (such as the Land and Water Adjudicatory Commission, Administration Commission, and the Power Plant Siting Board) will be Republican-controlled. With Governor Bush, Republicans have a 4-3 majority on Governor and Cabinet issues. Agriculture Commissioner Bob Crawford, a Democrat, endorsed Jeb Bush’s candidacy for Governor and his conservative stance on many issues effectively gives Republicans a 5-2 voting majority on Governor and Cabinet issues.

1. Preservation 2000 extension (Forever Florida / Florida 2020). Amendment No. 5 approved by the voters in the November 1998 elections authorizes the Legislature to issue revenue bonds with the proceeds being used for the "acquisition and improvement of land, water areas, and related property interests and resources for the purposes of conservation, outdoor recreation, water resource development, restoration of natural systems, and historic preservation." This provision is intended to reaffirm the constitutional basis of the bonds issued under the Preservation 2000 (P-2000) program. The overwhelming majority (72.3%) by which Amendment No. 5 was approved will likely send a message to the Legislature that P-2000 should be extended.

The 1998 Legislature considered two alternative proposals to extend P-2000, but neither was approved. The House’s proposal was known as Forever Florida, while the Senate’s proposal was known as Florida 2020. The primary difference between the House and Senate proposals was that the House version would have dedicated approximately $50 million of the bond proceeds for funding capital improvements at higher education facilities. It has been suggested that such a use of the bond proceeds would contravene Amendment No. 5 which limits the use of the proceeds to acquisition and conservation purposes.

A proposed committee bill (PCB NR-99-1) has been prepared by the Senate Natural Resources Committee to initiate the discussions on the parameters of the successor program to P-2000. Issues which will likely be debated in connection with the P-2000 extension are what type of multiple uses (e.g., forestry, linear facilities, water supply, etc.) are permissible on the acquired lands; what portion of the funds should be allocated to acquisition verses management or water supply development; whether any portion of the $300 million per year allocated to the P-2000 can or should be reserved for educational (rather than environmental protection) purposes; whether any portion of the funds should be devoted to the Central and Southern Florida Restudy Project (see below); and what level of compensation (if any) should be provided to local governments and school boards for lands taken off the tax rolls through acquisition.

Forever Florida was the main environmental issue which Governor Bush focused on during his campaign. As a result, this issue is expected to be his highest profile environmental issue during the 1999 Session.

2. Everglades "Restudy." The proposed Central and Southern Florida Restudy Project (Restudy) has now grown to a $8 billion public works project. The current Restudy plan consists of over 300 aquifer storage and recovery wells in addition to the acquisition of over 250,000 acres of land. The issue confronting the Florida Legislature is whether it should have any role in the planning and approval of the Restudy prior to the final plan being submitted to Congress in the spring of 1999.

Prior to the 1998 Session, the Joint Committee on Everglades Oversight was created to monitor the Restudy. HB 4141 was approved last Session and would have provided the Legislature the opportunity to approve the Restudy prior to the final plan being submitted to Congress, rather than relying upon the state’s local sponsor -- the governing board of the South Florida Water Management District -- to commit Florida’s share of the costs associated with the Restudy. HB 4141 was vetoed by Governor Chiles, partially as a result of pressure applied by the Clinton administration. It is likely that legislation similar to HB 4141 will be introduced and debated in the 1999 Session.

3. Wetlands -- Application of ERP in NWFWMD. In 1993, the "statewide"environmental resource permit (ERP) program replaced the management and storage of surface water (MSSW) program in each of the water management districts except the Northwest Florida Water Management District (NWFWMD). The NWFWMD has been operating under an "interim" permitting program since 1993. The authority for that interim program expires on July 1, 1999. Legislative action is necessary to implement the ERP program in the NWFWMD or extend the interim permitting program. The staff of the Senate Natural Resources Committee has proposed a committee bill (PCB NR-99-2) to extend the interim program and to authorize the NWFWMD to adopt MSSW rules rather than ERP rules. No timeframe is provided for the adoption of such rules. Some of the unresolved issues which may need to be addressed in this legislation are the relationship of the NWFWMD’s rules and the ERP rules, and the nature and extent of "grandfathered" activities.

4. Transportation and Land Use Study Commission. The 1998 Legislature created the Transportation and Land Use Study Commission to evaluate statutory provisions related to the coordination of transportation planning with community design and planning, with special emphasis

placed on concurrency for Interstate highways, level of service methodologies and projection of transportation needs. The Commission is required to present its findings and recommendations to the Legislature prior to the 1999 Session. The Commission’s recommendations may serve as the basis for legislative modifications to the concurrency provisions in section 163.3180, Florida Statutes, or the establishment of statutory incentives to encourage community design that reduces the reliance on the automobile. In addition to other recommendations, the Commission may propose the return of "pipelining" as a mitigation alternative for transportation impacts of developments of regional impacts (DRIs).

5. Total Maximum Daily Loads (TMDLs). The federal Clean Water Act requires states to identify impaired surface waters requiring additional controls to meet water quality standards, and then to establish TMDLs resulting in attainment of the standards. Florida and many other states arguably have not met all of the requirements of this program. EPA has not been aggressive in requiring states to implement all aspects of the TMDL program. Environmental groups have filed lawsuits against EPA in an effort to force the states to comply with the federal mandate. In an effort to resolve such litigation, DEP has identified TMDL waters and commenced the process of establishing TMDLs. However, DEP has not carried out these activities in accordance with the Administrative Procedure Act (APA) procedures. Legislation will be introduced addressing TMDL issues.

6. Fish and Wildlife Commission. Amendment No. 5, which was approved by the voters in the November elections, merges the Marine Fisheries Commission and the Game and Freshwater Fish Commission (GFC) into a new constitutional agency – the Fish and Wildlife Commission (FWC). The creation of the FWC becomes effective on July 1, 1999. Amendment No. 5 provides that the FWC will have all of the powers of the former GFC and additional powers relating to marine life. Legislative action is necessary to implement Amendment No. 5 and to precisely define the issues subject to the FWC’s jurisdiction. In this regard, the Senate Natural Resources Committee is expected to debate whether and what components of DEP’s marine-related functions (e.g., Florida Marine Patrol, State Park Patrol Unit, Division of Marine Resources) should be transferred to the FWC.

7. Title V Fees. Legislation was introduced in the 1998 Session (HB 3795 and SB 1554) to exempt the Air Pollution Control Trust Fund (APCTF) from the 7% surcharge imposed by the Comptroller on most trust funds. That legislation passed the House unanimously but died on the Senate Special Order Calendar.

The surcharge has the effect of reducing (by approximately $1.4 million) the moneys available to DEP to implement Title V of the Clean Air Act. Since the annual per-ton fee charged under DEP’s Title V air operation permit program may not be increased without a determination by the DEP Secretary that a shortage of funds exist in the APCTF, the effect of the bill would be to reduce the likelihood of a fee increase or reduce the amount of any increase. The bill would have also prohibited DEP from increasing Title V fees until it conducted an audit to verify that non-Title V programs are not being subsidized by Title V fees, as well as redefine what activities can be paid for with Title V fees. In this regard, the 1998 legislation was directed, in part, at DEP’s efforts to increase Title V fees to address alleged revenue shortfalls. DEP has since abandoned those efforts, but it is expected that the surcharge exemption issue will resurface in 1999.

8. Motor Vehicle Inspection Program. Legislation was approved during the 1998 Session to significantly scale back the motor vehicle inspection program (MVIP) which operates in the six Florida counties formerly classified as non-attainment areas under the federal ozone ambient air quality standard. The 1998 legislation requires the Department of Highway Safety and Motor Vehicles (DHSMV) to conduct a cost-study of various alternative programs and present the results to the Legislature prior to the 1999 Session. If the Legislature fails to act during the 1999 Session, DHSMV is authorized by the 1998 legislation to contract with private vendors to administer the MVIP for an additional two years. Under that scenario, the MVIP will shift to a biennial testing program, and will exempt the four newest model years of cars from testing.

There may be a move by legislators within the six affected counties to eliminate the MVIP altogether. (Notably, Speaker Thrasher and other members of House leadership hail from Duval County, one of the areas subject to the MVIP). If the scaled-back version of the MVIP is implemented, or if the MVIP is eliminated altogether, the U.S. Environmental Protection Agency could determine that Florida is not in compliance with the Clean Air Act and force the state to enact more stringent air emission requirements on stationary sources.

9. Environmental Justice. In 1998, the U.S. Environmental Protection Agency issued interim guidance for dealing with environmental justice complaints. This interim guidance has been controversial and criticized by many. The interim guidance applies to permits issued by state agencies, including DEP. Uncertainty regarding DEP’s authority under Florida law to implement this guidance could prompt efforts to adopt legislation to provide DEP the requisite authority.

The Legislature created the Center for Environmental Equity and Justice at Florida A&M University last Session. The purposes of the Center are to conduct and facilitate research; develop policy; and engage in education, training and community outreach regarding environmental equity and justice issues. The Center is seeking funding from the Legislature of approximately $1 million for the 1999-2000 fiscal year.

10. Administrative Procedure Act. Legislation has been pre-filed in the House and Senate to clarify the legislative intent underlying the limitations on agency rulemaking adopted as part of the 1996 APA reform. The bills, HB 107 and SB 206, would reject the "class of powers" test created by the 1^st District Court of Appeal (DCA) in St. Johns River Water Management District v. Consolidated-Tomoka Land Co., 717 So. 2d 72 (Fla. 1^st DCA 1998), to evaluate the validity of agency rules. The bills also clarify the order of presentation and burden of proof in cases involving challenges to proposed rules. The bills further provide that an agency’s confirmation of a statutory exemption is not "agency action" which would provide a point-of-entry to challenge the agency’s decision. Finally, the bill would exempt the operation of water control districts created under Chapter 298, Florida Statutes, from the provisions of the APA.

11. Urban Infill. The Legislative Committee on Intergovernmental Relations (LCIR) has prepared model legislation to encourage urban infill. This legislation provides various incentives for development in and redevelopment of urban areas which meet specified criteria. The incentives include waiver of certain fees; expedited permitting and prioritization of infrastructure expenditures; an increase of the DRI substantial deviation thresholds for certain development (e.g., office, industrial, and hotel) within the area; and exemptions from transportation concurrency. HB 17, pre-filed by House Resource and Land Management Council Chairman Lee Constantine, incorporates the LCIR proposal verbatim.

12. SLAPP Suits. Lawsuits commonly referred to as Strategic Lawsuits Against Public Participation (or SLAPP suits) have been used to discourage citizens from urging government to deny or take unfavorable action on the regulatory approvals required for a development project. Several states have adopted anti-SLAPP legislation to prevent this type of suit. The Florida Legislature considered, but did not approve, anti-SLAPP legislation last Session. This legislation has been refiled for the 1999 Session.

13. Ex parte Communication with Local Public Officials. A component of Amendment No. 10 rejected by the voters in the November elections was a provision which would authorize citizens to communicate with local public officials on quasi-judicial matters pending before the official notwithstanding the general prohibition of ex parte communications. This provision was intended to overrule the 3^rd District Court of Appeal’s 1991 opinion in Jennings v. Dade County, 589 So. 2d 1337 (Fla. 3d DCA 1991), and would have a significant impact on those local land use decisions which are quasi-judicial in nature. The proposed constitutional amendment would provide constitutional underpinning for Section 286.0115, Florida Statutes, which was adopted in 1995 to overrule Jennings. Some have argued that that statute is ineffective in overruling Jennings because the court’s decision was grounded on the procedural due process violation resulting from ex parte communications. As with the conservation easement ad valorem tax exemption (see below), the Legislature may attempt to place this issue on the ballot.

14. Tax exemption for land subject to conservation easement. In the November elections, the voters rejected Amendment No. 10 (proposed by the Constitution Revision Commission) which would have provided constitutional underpinning for the ad valorem tax exemption provided for lands subject to a conservation easement (Section 193.501, Florida Statutes). Recent court decisions which hold that the Legislature may not adopt ad valorem tax exemptions not specified in the Florida Constitution raise questions about the validity of the tax exemption provided for such lands. Legislative action may be necessary to provide incentives, other than ad valorem tax exemptions, and to encourage owners to place conservation easements on their property. Alternatively, the Legislature might propose another constitutional amendment to allow an ad valorem tax exemption for lands subject to a conservation easement. Such an amendment may have a better chance of passage considered alone rather than in conjunction with the other issues that were included in Amendment No. 10.

Kent Wetherell is an associate with Hopping Green Sams & Smith, P.A., in Tallahassee where his practices focuses on administrative law, land use law and legislative lobbying. He is the 1998-99 chairman of the ELULS Legislative Committee. Mr. Wetherell would like to acknowledge the assistance of Wade Hopping, Frank Matthews, Kevin Covington and others at HGSS in the preparation of this article. Mr. Wetherell would also like to acknowledge Larry Seller’s contribution to this article relating to environmental justice and SLAPP suits.