Mad as Hell at the Misguided Miami Herald. By Geniusofdespair

In a splashy editorial today written by Charles Pattison, the Miami Herald rails against the Florida Legislature's bold move to gut growth management -- yet again. That is not news, the legislature does it every year, that is why Eye on Miami blog supports Amendment 4. I agree with the Miami Herald that SB 1752 (being voted on today - hit read more for info on bill) is more than outrageous.

The trouble with the Herald is they don't even report accurately as they use Amendment 4 as a stick against Legislators, they say:

"Lawmakers and builders oppose Hometown Democracy, saying it will require costly referendums on every development proposal." What the Miami Herald neglects to tell you is: THAT IS A LIE. What is the matter Miami Herald? You print a lie and then don't correct it? Here is the truth:

Residents would ONLY vote on project that developers wish to build that are not in compliance with the publicly approved Land-Use Plan. The majority of developments do NOT fall into this category. And, further, these few developments would also have to have been approved by elected officials first.

I think it is cheap to use Amendment 4 in this fashion Miami Herald (i.e. Legislature, if you don't behave people are going to pass Amendment 4 and it will serve you right) warning legislators that the "Bill could fuel anti-sprawl voters' revolt."

The Herald didn't even mention the Amendment number in the article, trying so hard not to help it. Miami Herald, you know the legislature will assault growth management every year on behalf of their developer buds...How about getting on board with Amendment 4? Too busy composing ads for the Latin Builder's Association's glossy, "Proyecto"? Don't hide behind author Pattison, Herald, you printed it as "OUR OPINION." Read Gimleteye's opinion on this in the post below.

SB 1752 bill with comments by David J. Cullen:
Under the guise of “stimulating” the economy, S 1752 would:
• gut permitting
• Force counties and cities to apply for the authority to do DEP or WMD’s work on permitting
• Preempt counties and cities from passing local ordinances for stormwater and wetlands if they don’t ask for the authority
• Allow 40 acre projects without a permit and without even notifying DEP or the Water Management District until ten days after starting on the project!
• Allow projects to go ahead if individuals “self certify” that they are in compliance with all applicable regulations
• Allow developments to proceed if a “professional” signs and seals the plan

These changes that would hurt Florida ’s environment are not necessary! The housing boom of 2004-06 took place under current law – 90 days for permits, no required delegation to counties and cities, no preemption, and no “self” or “professional certification”!!

Section 23 - Thirty day permit turnaround

Sometimes what is taken out of law is as important as what is added. The “Jobs” bill takes out a requirement for the department (DEP) to request all additional information they are permitted by law to require. Having less information (and less time to evaluate it) can only mean a less valid basis for making the permitting decision.

The bill provides that the department has 30 days from the date a permit application is received to approve or deny it. If they do not render a decision within thirty days the permit is deemed approved!

The thirty day clock starts from the day the application is received. It doesn’t matter if it is complete or not, or if the department needs more information. It’s thirty days from the date of application – no exceptions.

The economy will pick up and the backlog of unsold housing will eventually be sold. Even if you accept the premise that permitting staff is now twiddling their thumbs because there is “no growth to man age”, there will be again. There is no mention of either ensuring that staff has the ability to turn permits around in this time limit, nor a sunset provision to return the limit to its previous 90 days.

The Section of the statutes that will be changed is below (Words stricken through are deleted; words underlined are added; plain text is unchanged existing language.)

373.4141 Permits; processing.-
(1) Within 30 days after receipt of an application for a
permit under this part, the department or the water management
district shall review the application and shall request
submittal of all additional information the department or the
water management district is permitted by law to require. If the
applicant believes any request for additional information is not
authorized by law or rule, the applicant may request a hearing
pursuant to s. 120.57. Within 30 days after receipt of such
additional information, the department or water management
district shall review it and may request only that information
needed to clarify such additional information or to answer newquestions raised by or directly related to such additional
information. If the applicant believes the request of the
department or water management district for such additional
information is not authorized by law or rule, the department or
water management district, at the applicant's request, shall
proceed to process the permit application.
(1)(2)An application for a permit under this part A permit
shall be approved or denied within 30 ~ days after receipt of
the original application, the last item of timely requested
additional material, or the applicant's written request to begin
processing the permit application.
(2)(3) Processing of applications for permits for
affordable housing projects shall be expedited to a greater
degree than other projects.

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Section 24 – DEP delegation

All counties with over 75,000 and municipalities with over 50,000 people must request delegation of authority from DEP. (This would be 37 counties per the EDR website http://edr.state.fl.us/population.htm (click on the excel spreadsheet at the end of the second bullet.)

The requirement mandating a request for delegation ignores the language of 373.441(1)(a):

(a) Provisions under which the environmental resource
permit program shall be delegated, upon approval of the
department and the appropriate water management districts, to a
county, municipality, or local pollution control program which
has the financial, technical, and administrative capabilities
and desire to implement and enforce the program;

It also ignores the subsequent subsections (b – f, see below)

Localities and the state have different perspectives, incentives, and expertise. A system in which both state and local governments are involved serves the public interest of preserving essential natural systems.

A second area of concern is in (3):
A county,
municipality, or local pollution control programs that fails to
apply for delegation of authority may not require permits that
in part or in full are substantially similar to the requirements
needed to obtain an environmental resource permit.

Which local permits would be prohibited?
Would they be prohibited if 10% of the requirements were “substantitally similar”?
What does “substantially” mean? How much “in part” would mean a local ordinance would be preempted?

Text of section:

Section 24. Section 373.441, Florida Statutes, is amended
to read:
373.441 Role of counties, municipalities, and local
pollution control programs in permit processing; delegation.
(1) The department in consultation with the water
management districts shall, by December 1, 1994, adopt rules to
guide the participation of counties, municipalities, and local
pollution control programs in an efficient, streamlined
permitting system. Such rules shall seek to increase
governmental efficiency, shall maintain environmental standards,
and shall include consideration of the following:
(a) Provisions under which the environmental resource
permit program shall be delegated, upon approval of the
department and the appropriate water management districts, to a
county, municipality, or local pollution control program which
has the financial, technical, and administrative capabilities
and desire to implement and enforce the program;
(b) Provisions under which a locally delegated permit
program may have stricter environmental standards than state
standards;
(c) Provisions for identifying and reconciling any
duplicative permitting by January 1, 1995;
(d) Provisions for timely and cost-efficient notification
by the reviewing agency of permit applications, and permit
requirements, to counties, municipalities, local pollution
control programs, the department, or water management districts,
as appropriate;
(e) Provisions for ensuring the consistency of permit
applications with local comprehensive plans;
(f) Provisions for the partial delegation of the
environmental resource permit program to counties,
municipalities, or local pollution control programs, and
standards and criteria to be employed in the implementation of
such delegation by counties, municipalities, and local pollution
control programs;
(g) Special provisions under which the environmental
resource permit program may be delegated to counties having with
populations of 75,000 or fewer less, or municipalities with, or
local pollution control programs serving, populations of 50,000
or fewer less; and
(h) Provisions for the applicability of chapter 120 to
local government programs when the environmental resource permit
program is delegated to counties, municipalities, or local
pollution control programs; and
(i) Provisions for a local government to petition the
Governor and Cabinet for the review of a request for a
delegation of authority which has not been approved or denied
within 1 year after being initiated.
(2) Any denial by the department of a local government's
request for a delegation of authority must provide specific
detail of those statutory or rule provisions that were not
satisfied. Such detail shall also include specific actions that
can be taken in order to allow for the delegation of authority.
A local government, upon being denied a request for a delegation
of authority, may petition the Governor and Cabinet for a review
of the request. The Governor and Cabinet may reverse the
decision of the department and may provide any necessary
conditions to allow the delegation of authority to occur.
(3) A county having a population of more than 75,000 or
more or a municipality having or local pollution control
programs serving populations of more than 50,000 must apply for
delegation of authority on or before June 1, 2011. A county,
municipality, or local pollution control programs that fails to
apply for delegation of authority may not require permits that
in part or in full are substantially similar to the requirements
needed to obtain an environmental resource permit.
(4) (2)Nothing in this section affects or modifies land
development regulations adopted by a local government to
implement its comprehensive plan pursuant to chapter 163.
(5) (3)The department shall review environmental resource
permit applications for electrical distribution and transmission
lines and other facilities related to the production,
transmission, and distribution of electricity which are not
certified under SSe 403.52-403.5365, the Florida Electric
Transmission Line Siting Act, regulated under this part.
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Section 25 – Self Certification
Section 25. Subsection (41) is added to section 403.061,
Florida Statutes, to read:
403.061 Department; powers and duties.-The department shall
have the power and the duty to control and prohibit pollution of
air and water in accordance with the law and rules adopted and
promulgated by it and, for this purpose, to:

(paragraph (41) would be added by the bill)

(41) Expand the use of online self-certification for
appropriate exemptions and general permits issued by the
department and the water management districts if such expansion
is economically feasible. Notwithstanding any other provisions
of law, a local government may not specify the method or form
for documenting that a project meets the requirements for
authorization under chapter 161, chapter 253, chapter 373, or
this chapter. This includes Internet-based department programs
that provide for self-certification.

The department shall implement such programs in conjunction with
its other powers and duties and shall place special emphasis on
reducing and eliminating contamination that presents a threat to
humans, animals or plants, or to the environment.

This is a non-sequitur at best. How can the department further its duty to control and prohibit pollution of air and water by expanding the use of online self-certification? It has nothing to do with the purpose of the section.

Any proposal for self (or professional) certification should include at a minimum a mechanism for inspection, enforcement, and sanctions for abuse of the privilege of using the self/professional certification process.

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Section 26 Professional Certification
This section provides that projects of up to forty acres can be started without a permit and without even notifying DEP or the WMD until ten days after construction begins!

This provision will encourage “hired guns” to design projects that skirt the edge of what is allowed with the net result of damage to the environment that would have been avoided if DEP or the WMD had been in charge since the state agency is supposed to put the state’s interests foremost. A hired engineer will, of course, put his or her client’s interests first. There’s nothing wrong with that, except that there is an inherent conflict of interest – the client’s vs. the state’s. It is asking a lot to expect that engineers will consistently come down on the side of the state when their paycheck is coming from the other side.