Environment

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by martha edenfield

Environmental Miscellany

While implementation of Amendment Five will likely be one of the most closely watched and hotly debated issues of the 1998 Legislative Session, there are other environmental issues that have broad implications for the state that may be addressed by the Legislature this year.

REGULATORY REFORM

In 1996, the Legislature enacted the new Administrative Procedure Act (APA) providing, among other things, restrictions to agency latitude in rule-making.

Under the new APA, agencies can only adopt rules that implement specific laws enacted by the Legislature. Regulatory powers and functions are now limited to those explicitly set forth in state statutes. This limitation was necessary to thwart what many deemed a power grab by bureaucrats who were no longer content with merely executing the laws of the state, but who seemed to be usurping legislative authority to set policies.

The new APA will require a change in culture at state agencies, some of which are unwilling to accept the new regime. Even as the 1996 Legislature was working on the new APA, state agency personnel were working just as assiduously to protect their power. Those efforts have continued.

In November of 1997, an administrative law judge struck down some regulations of the St. John's River Water Management District, applying a strict interpretation to the APA statute. The ruling has been appealed by the district, and briefs have been filed by several agencies, the attorney general, and the governor's office. They argue that the Legislature did not intend to drastically hinder agency flexibility in implementing their regulatory responsibilities.

Under the guise of "clarification," state agencies are expected to attempt an end run around the new APA through legislation weakening the specific authority requirement. Lawmakers may counteract by strengthening the language imposing that requirement.

BROWNFIELDS ECONOMIC INCENTIVE LEGISLATION

Brownfields are clusters of abandoned, vacant, or underutilized sites contaminated by hazardous materials, often released decades ago. Commonly located in older, poorer city neighborhoods, brownfields are often viable sites for redevelopment or reuse.

Unfortunately, stringent environmental regulations, development requirements, and impact fees have the unintended consequence of creating disincentives for private cleanup and investment in brownfield areas. Additional issues of legal liability for pollution have thwarted redevelopment.

Last year the Legislature enacted the Brownfields Redevelopment Act, striking a balance between maintaining environmental protection while promoting development of these blighted areas. While the 1997 legislation establishes a framework for redevelopment of brownfield areas, there is more that can be done to provide economic incentives and safeguards to bankers and business people who become partners in these efforts.

COASTAL CONSTRUCTION

Coastal construction lines have been established and re-established in Florida's beach areas and now many of these lines are located landward of beach roads and highways. Where the coastal construction line is in place, significant restrictions exist in the redevelopment of the dilapidated and economically underutilized beach and coastal areas. In many cases, these restrictions render redevelopment impossible, frustrating the economic revitalization of a community.

In 1998, the Legislature will examine pilot projects to encourage redevelopment of these dilapidated coastal areas to promote economic growth. The incentives include technical assistance to expedite permitting, as well as exemptions from certain Department of Environmental Protection siting and design criteria for qualified coastal redevelopment projects

If this concept works in pilot project areas, its expansion could provide a boost to the economies of older coastal areas located throughout the state.

OTHER ARTICLES:
The Trouble with what Polluter Pays

Martha Edenfield is a partner in the law firm of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., and environmental consultant to Associated Industries of Florida.

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March/April 1998 -- Florida Business Insight, PO Box 784, Tallahassee, Fla. 32302
(850)224-7173, insight@aif.com

 

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