Intergovernmental Programs Procedure and Reference Manual
STATE CLEARINGHOUSE REVIEWS
Under its Clearinghouse program, OIP:
Under its Comprehensive Plan program, OIP:
Under its Outer Continental Shelf (OCS) program, OIP:
This manual is designed to assist DEP staff in their review of project and planning documents that are distributed throughout the agency by OIP. The manual provides background information related to the review processes, as well as general guidance on how to comment. If your questions are not addressed in this manual, or if you have questions related to a specific project review, please contact the OIP staff person who is listed on the project cover sheet.
The Intergovernmental Cooperation Act of 1968 spawned a variety of federal initiatives aimed at coordinating the great number of categorical programs that Congress enacted in the 1960s. A centerpiece of this intergovernmental activity was the issuance of the Office of Management and Budget's Circular A-95, which served as the guiding document for state and federal review of federal grant applications.
Circular A-95 was subsequently revisited by the Office of Management and Budget (OMB) when problems with the process were identified. To overcome those problems, the OMB decided to allow states to develop their own processes, and on July 14, 1982, President Reagan signed Executive Order 12372 rescinding Circular A-95 and setting general guidelines for the states' processes. The final rules implementing Executive Order 12372 state that one of the responsibilities of the secretary of a federal agency is to "communicate with state and local elected officials as early in a program planning cycle as is reasonably feasible to explain specific plans and actions."
Executive Order 12372 affords DEP an early opportunity to influence projects to be conducted, permitted or funded by the federal government. In addition to the review of federal grant applications (previously circulated through the A 95 process), other federal actions are reviewed by states under the auspices of Executive Order 12372, to comply with the National Environmental Policy Act (NEPA), the Coastal Zone Management Act (CZMA), the National Historical Preservation Act, and the Outer Continental Shelf Lands Act (OCSLA). Primarily, DEP reviews projects prepared for compliance with the NEPA and the federal consistency provisions of the CZMA. The formal name given to the entire process is Intergovernmental Coordination and Review (ICAR).
The Florida State Clearinghouse administers the ICAR for projects in Florida. The Clearinghouse is located in the Department of Environmental Protection (DEP) and is Florida's single point–of–contact under Executive Order 12372. As part of the Clearinghouse’s responsibilities under the NEPA, the CZMA, the Intergovernmental Coordination Act and various Florida statutes, the Clearinghouse coordinates the review of proposed federal actions and activities in Florida. The only exception is the review of a proposed federal permit to a private applicant for which there is a corresponding state permit, in which case the state permit review includes the federal consistency review.
The route of a project through the ICAR process typically consists of the following steps:
1. Projects that are subject to review are logged in by the Clearinghouse and assigned State Application Identifier (SAI) numbers. SAI numbers ending with the letter “C” refer to projects to be reviewed for federal consistency. These are projects that could have a potential impact on the coastal zone, and are thus typically limited to those activities occurring in coastal counties. After initial review, the Clearinghouse distributes copies of project applications to the appropriate state agencies for review and comment. Each agency is expected to provide comments regarding compliance with its plans, laws, programs, procedures, and objectives.
2. Each agency prepares and transmits its response to the Clearinghouse which usually requests that agencies complete their reviews and return comments within two weeks. More time is usually available under applicable federal time clocks, which are typically 60 days in length. Time extensions can usually be granted unless the applicant has requested an expedited review, or some other constraint exists.
3. The Clearinghouse prepares a clearance letter to transmit state agency comments to the applicant or federal agency. Applicants for funding forward a copy of the clearance letter and attached comments to the appropriate federal funding agency. When the state is objecting to the award of federal assistance and the project is not being reviewed for consistency with the Florida Coastal Management Program, a state process recommendation letter is prepared by the Clearinghouse and forwarded to the federal funding agency with a copy to the applicant. Substantive comments received by the Clearinghouse after a clearance letter is sent out will be forwarded to the applicant or federal agency as a follow–up.
A given project may be circulated through the Clearinghouse pursuant to several review requirements (e.g. Executive Order 12372, CZMA, and NEPA). Nonetheless, all reviews are performed concurrently, resulting in a single comprehensive state response. The following two sections provide background on two of the most important pieces of federal legislation affecting project reviews, the Coastal Zone Management Act and the National Environmental Policy Act.
Congress passed the Coastal Zone Management Act to assist coastal states, Great Lake states, and United States' territories in the development of state coastal management programs and comprehensive management and balance between competing uses of and impacts to coastal resources. “Federal consistency” is the CZMA requirement that federal actions affecting any land or water use or natural resource of the coastal zone be “consistent” with the enforceable policies of a coastal state's or territory's federally approved coastal management program. Specifically, the process authorizes states to review the following categories of activities for compliance with the requirements of approved management programs:
A. activities conducted by or on behalf of a federal government agency;
Federal consistency is a mandatory, but flexible, mechanism that can resolve potential conflicts between states and federal agencies by fostering early consultation, cooperation, and coordination.
For example, a state with an approved coastal management program determines that an activity in category A is "inconsistent" with the requirements of its approved program, the federal agency may not proceed with the activity, unless full consistency with the state's program is preempted by federal law. If a state determines that an activity in category B, C or D is inconsistent with the requirements of its approved program, the federal agency may not proceed with the activity or financial award. The CZMA federal consistency provisions address the need for federal agencies to consider state and territorial coastal management policies when carrying out federal projects and programs.
Federal consistency is more than just a procedural dictate, however. For instance, the federal consistency "effects test" can help protect entire ecosystems, as well as individual resources and uses. The "effects test" is used to determine if a federal action is subject to federal consistency by determining if it is reasonably likely to affect any land or water use or natural resource of the coastal zone. If a federal or federally supported activity occurs outside a coastal state's territorial waters or inland coastal zone boundary, but will affect coastal water quality, habitat, wetlands, etc., then it may be subject to federal consistency review.
For states, federal consistency is a powerful tool to affect most federal actions affecting the coastal zone. For federal agencies, consistency provides an effective mechanism to document coastal effects and to address state and territorial coastal management concerns. Early attention to the federal consistency process often provides the federal agency with state and public support and a smooth and expeditious state permit review later on. Early consultation and cooperation between federal agencies and coastal management programs helps federal agencies avoid costly last–minute changes to projects to comply with state regulatory requirements.
The Florida Coastal Management Program (FCMP) was approved in September of 1981, and the entire state is included in Florida’s “coastal zone.” Placement of the entire state within the purview of the FCMP is based on the unique biogeography conditions found in Florida. It is also based upon the statewide applicability of the core statutes which comprise the program, and a legislative requirement that the coastal program not establish new, non-conforming criteria applicable to a geographic portion of the state. The FCMP is based on 24 state laws (see Table 1), and their implementing regulations, administered by 15 “networked” agencies. Under Florida law, the Department of Environmental Protection (DEP) is legally responsible for day–to–day program administration of Florida’s coastal management program.
Table 1. Florida Coastal Management Program Statutes
All four categories of projects identified above are circulated through the Clearinghouse for review, with the exception of a subset of Category B activities, which are non federal activities that require a federal permit. If an activity requires a federal permit and there is not an analogous state permit, the activity will be reviewed through the Clearinghouse. If the activity requires a federal license or permit and there is an analogous state permit (e.g., federal wetland permits issued under Section 404 of the Clean Water Act), the consistency of the activity is determined by issuance or denial of the state permit. The latter arrangement avoids unnecessary and duplicative review.
To fulfill the statutory obligation to include all applicable state agencies in consistency decisions, procedures were established that allow participating agencies (Department of Community Affairs, Department of State and Florida Game and Freshwater Fish Commission) to comment on analogous permit decisions prior to issuance or denial and to allow a consistency objection to be the basis of a permit denial. These procedures are followed by DEP for the permits that it issues.
With the implementation of the Environmental Resource Permit (ERP) process in Chapter 373, F.S., it is expected that the water management districts will play an increasing role in administering the consistency process. Although there is no rule to implement the consistency reviews required under Section 380.23, F.S. procedures for completing consistency reviews are articulated in an operating agreement between DEP, the Department of Community Affairs and the Governor’s Office of Policy and Budget (OPB).
Each FCMP agency must ensure that federal activities that affect Florida's coastal zone comply with the requirements of that agency’s approved statutes. In Florida, under Section 380.23, F.S., a project can only be found consistent if all commenting agencies with relevant statutory responsibilities concur. Therefore, each proposed federal action is reviewed by those agencies having statutory interest in the activity to determine whether it complies with its respective statutes and authorities in the Florida Coastal Management Program.
Member agencies provide responses addressing the activity's consistency with the FCMP to the State Clearinghouse. The State's final consistency determination, which is based on the member agency recommendations, is transmitted by the Clearinghouse to the applicant or the federal agency. If an agency informs the Clearinghouse that an inconsistency response is likely to be forthcoming, the federal agency or applicant is notified of the basis for the objection. This notification is usually (and preferably) an informal communication from either the Clearinghouse, DEP or a higher level in the Governor’s Office and includes an invitation to confer with the objecting agency. The intent is to offer an opportunity to resolve conflicts and avoid the necessity of transmitting an official inconsistency letter.
Although a consistency objection is a serious matter between the state and a federal agency, it should not be characterized simply as a means to terminate projects. Very few projects have ever been eliminated by a state inconsistency decision. Rather, the process has served as a mechanism to foster state and federal cooperation in planning, designing and carrying out federal activities in Florida. Usually a consistency objection precipitates state and federal consultation on contested issues, which leads to project modifications and, ultimately, the withdrawal of the consistency objection.
Under the provisions of Executive Order 12372 and the National Environmental Policy Act, the Department may make general comments and recommendations and raise objections to projects. If a project or activity is also subject to the coastal management consistency review, the Department is expected to state whether it is consistent with applicable statutory authorities. There is an important distinction between the legal effect of comments related to CZMA and comments made pursuant to Executive Order 12372 and the National Environmental Policy Act: CZMA consistency comments are binding, while comments made under other authorities are typically advisory. Therefore, it is important for DEP’s division and district reviewers to fully address the consistency of a federal action with applicable statutes, rules, and programs. Reviewers should consult the comment guidelines below for further details on handling consistency reviews.
In 1969, the Congress of the United States was struggling to respond to widespread and growing public concern over the quality of the nation's environment. This concern had been building for several years in light of numerous reports that the country's air, water, wildlife, and quality of human life were being degraded, in part by activities undertaken, funded, or permitted by the federal government.
From more than 30 bills introduced to address various aspects of the issues, committees in the Senate and House of Representatives each produced a bill to declare a national policy in favor of environmental quality. The bills also proposed creation of a Council on Environmental Quality (CEQ) in the Executive Office of the President, modeled on the Council of Economic Advisors, that would advise the President on environmental matters and monitor the environmental performance of the executive branch agencies.
The National Environmental Policy Act (NEPA) was signed into law in January 1970. Its general purposes are to declare a national policy that will encourage productive and enjoyable harmony between man and his environment; to promote efforts to prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of ecological systems and natural resources important to the nation; and to establish a Council on Environmental Quality.
The Act includes the specific requirement that all federal agencies must prepare and circulate, for major federal actions significantly affecting the quality of the human environment, a detailed statement on the environmental impacts, adverse environmental effects, and alternatives to the proposed action. Consequently, federal agencies began developing environmental impact statements (EIS) to evaluate the impacts of an activity, and a set of alternative actions on the affected environment. Under CEQ regulations, a federal agency may prepare an environmental assessment (EA) to determine whether the preparation of an EIS is necessary. That is, an EA may conclude that the proposed action would not significantly affect the environment. Rather than proceed with preparing an EIS, the federal agency may issue a finding of no significant impact (FONSI).
Under the NEPA, federal agencies must seek the views of the state regarding a proposed action, but are not required to comply with state laws or policies. Federal agencies are, however, obligated to respond to state comments on NEPA documents and to attempt to accommodate the state's concerns. Regardless of the obligation, NEPA does not compel compliance with state laws as CZMA does. It was simply the first major federal law requiring federal agencies to consider the impact of their activities on the environment and to provide a forum for determining compliance with other federal laws, including CZMA. Because of this, a NEPA document is usually a key opportunity on making the state’s consistency decision.
If you receive a request for comments from OIP, please consider the following guidelines:
If you determine that a project conflicts with your program’s statutory authorities, please also consider the following. Although the comment guidelines for inconsistencies and objections are the same, remember that an inconsistency (when CZMA is applicable) requires federal agency compliance, while an objection does not.
1. The State Clearinghouse sends the document or application to OIP for coordination of DEP review.
2. The project is logged into the Clearinghouse database by the SAI number.
3. OIP’s Clearinghouse Coordinator routes the project to the appropriate DEP division/district contacts (see contact list in appendix) based upon the location of the project and affected program areas.
4. Division contacts distribute the project to appropriate division bureaus and satellite offices (e.g. aquatic preserve staff; parks district staff). District contacts will distribute the project to the appropriate program areas within the district and district branch offices (e.g. waste management, air resources and water facilities).
5. The cover sheet requesting comments will indicate the comment review period (approximately two weeks), the name of the OIP staff member coordinating the review, and guidelines for reviewing the project.
6. Division and districts send comments to OIP staff member who gathers and integrates all comments. If there are internal agency disputes, meetings will be called to resolve them prior to sending the DEP memorandum to the Clearinghouse. Any proposed inconsistency will also be reviewed by senior management and meetings will be scheduled as necessary. In the event that meetings are required, time clock constraints will necessitate cooperation on short notices of meeting schedules.
7. OIP will prepare and send DEP comments directly to the Clearinghouse, except for inconsistencies/objections which are first routed to the Secretary for signature.
8. OIP will retain the final state position letter in its files and will copy agency staff upon request.
9. Since the Clearinghouse reviews usually occur before permit applications are submitted, OIP has added a question to the wetland resource permit completeness summary, requesting that applicants submit any previous Clearinghouse correspondence. This will assist DEP staff with information regarding earlier DEP comments or commitments.
The State of Florida has developed an integrated planning system intended to ensure the coordinated administration of policies that address the multitude of issues posed by the state’s continued growth and development. The integrated comprehensive planning framework calls for planning at all levels of government. Figure 1 illustrates the framework and the relevant linkages. Key statutory guidance for the planning activities are included in the following statutes:
OIP coordinates the Department’s involvement in statewide planning efforts conducted under all of the above authorities, although the nature and level of involvement varies. The State Comprehensive Plan and the majority of the local government comprehensive plans have been adopted, while numerous local comprehensive plan amendments continue to be reviewed through OIP each year. The State Comprehensive Plan is reviewed annually and local plans are updated every five to seven years through the Evaluation and Appraisal Report (EAR) process. Through that process, the Department has the formal opportunity to evaluate proposed amendments to the comprehensive plan, which are based upon the evaluation and appraisal report, to ensure that they are consistent with DEP’s rules and policies.
The Florida Water Plan and the Florida Transportation Plan have been adopted. Through its review of planning activities, OIP assists with implementation of the Florida Water Plan, and the water supply plans of the five water management districts. Descriptions of the state’s various planning activities, particularly the local government comprehensive plans, are provided below.
Growth management legislation was passed in 1985 in response to Florida's struggle to provide the facilities and services that communities need to foster economic growth and preserve natural amenities. The importance of comprehensive planning cannot be overstressed, because it results in decisions regarding long-term issues such as environmental protection and economic development. Section 163.3177, F.S., states that local government comprehensive plans will provide the policy foundation for local planning and land use decisions on capital improvements, conservation, intergovernmental coordination, recreation, open space, future land use, housing, traffic circulation, coastal management (where applicable), and public facilities.
Most of Florida’s county and city governments have adopted local government comprehensive plans, so the majority of DEP’s ongoing plan review activity involves amendments to local government comprehensive plans. The reviews provide the Department an opportunity to influence local development in a manner consistent with our adopted policies. Amendments can be in the form of 1) map amendments that propose changes to a local government’s future land use map; 2) text amendments that propose changes to the goals, objectives, and polices of the adopted comprehensive plan; and 3) EAR amendments that are based on the evaluation and update of a local government’s comprehensive plan. The latter may be a combination of both map and text amendments.
The local government comprehensive plan amendment review process includes six major phases: 1) completeness phase; 2) a 45–day preliminary review phase; 3) a 60–day Objection, Recommendation, and Comment (ORC) review phase; 4) a 60–day adoption phase; 5) a 45–day compliance review phase; and 6) for those plan amendments that are not in compliance, a compliance negotiation phase.
1) Completeness Phase
The plan amendment review process is initiated when a local government transmits an amendment to the Department of Community Affairs (DCA) (Figure 7). The amendment may be a proposed text change or a change to the future land use map. After transmittal of the plan amendment and support documentation (with concurrent transmittals to the regional planning councils, water management districts, DOT and DEP), DCA staff will determine whether the submittal package is complete. The plan amendment will not be processed for preliminary or formal review until it is determined complete. DCA notifies the local government, the regional planning council, the water management district, DOT and DEP whether the submittal is complete or incomplete. Once complete, the local government may then request that all or a portion of the amendment package be reviewed. DCA notifies OIP whether the local government is asking for a waiver from an ORC review or has requested a formal ORC review.
2) Preliminary Review Determination Phase
When a local government does not request a formal ORC review of the amendment package, DCA has 30 days from the date of transmittal to determine whether or not an ORC review is required. To assist in making that determination, the water management district, DOT and DEP submit recommendations within 21 days of the transmittal. The preliminary review consists of an evaluation of substantive issues under relevant DEP authorities.
3) Objections, Recommendations and Comments Phase
Formal amendment review will occur either as a result of a request by a local government or as a result of the determination by DCA, based on preliminary review, that a full review is necessary. The ORC process includes the formal review and subsequent report issued by DCA on a plan amendment. This phase consists of two 30–day periods. During the first 30–day period, the agencies are asked to review the proposed plan amendment. Concurrently, the DCA plan reviewer conducts an assessment of the content of the plan amendment, and reviews the amendment for adequacy to identify problems, major deficiencies and policy issues to be considered at the pre–compliance and compliance meetings. The DCA plan reviewer also conducts a review to determine whether the amendment is consistent with Chapter 163, F.S., and Rule 9J–5, Florida Administrative Code, (F.A.C.), the strategic regional policy plan, and the State Comprehensive Plan, and whether the plan amendment is supported by adequate data and analysis.
For map amendments, the DCA plan reviewer will also consider whether the proposed change is compatible with adjacent land uses, is supported by adequate public facilities, includes a land suitability analysis, and is consistent with the objectives and policies of the adopted plan. The second 30–day period of the ORC review phase begins after receipt of agency comments. DCA plan reviewers consider agency comments and may incorporate DEP’s objections or comments into the ORC report. DCA relies on state agencies for technical expertise and knowledge of local conditions. In addition, DCA plan review staff coordinate with regional planning council staff about issues relating to consistency of local plan amendments with the strategic regional policy plans, and also focus on whether the plan amendment is consistent with and furthers the goals and policies of the State Comprehensive Plan.
An ORC report summarizing this review is prepared by DCA and submitted to the local government. The ORC report includes objections, recommendations, and comments regarding consistency of the proposed plan with Chapter 163, F.S., Chapter 9J–5, F.A.C., the State Comprehensive Plan and the applicable strategic policy plan. In determining consistency of the local plan or plan amendment with the State Comprehensive Plan, the state plan is construed as a whole and no specific goal and policy is construed or applied in isolation from the other goals and policies in the plan. The Department of Community Affairs makes the ORC determination after evaluating all comments, objections and recommendations received from reviewing agencies.
4) Adoption Phase
During this phase, local governments have 60 days to adopt the comprehensive plan amendment following receipt of DCA's ORC report. Local governments are encouraged to request technical assistance from DCA regarding the objections, recommendations, or comments on the plan amendment, to resolve potential compliance issues prior to plan amendment adoption. Local governments prepare the final version of the plan amendment, schedule public hearings, and adopt the comprehensive plan amendment.
5) Compliance Review Phase
The compliance review phase begins 45 days after DCA’s receipt of the adopted plan amendment. DCA plan reviewers will evaluate the local government's response to the ORC to determine whether objections and recommendations were adequately addressed and whether the adopted amendment is “in compliance” with legal requirements. DCA will also evaluate any new changes to the adopted plan amendments not previously reviewed to determine whether they meet Rule 9J–5 criteria.
DEP may be contacted about potential deficiencies that may result in a determination of non–compliance. DCA staff will schedule meetings and facilitate intergovernmental coordination as necessary to resolve any non–compliance issues. Then DCA will notify the local government as to whether or not the amendment is “in compliance.” If an amendment is determined not to be in compliance, DCA staff contacts the local government to negotiate an agreement to bring the local plan or plan amendment into compliance and provides the local government with a letter outlining the process. DCA also notifies the Division of Administrative Hearings (DOAH) of the Department's finding that the plan is not in compliance and requests an administrative hearing.
If the local government is interested in negotiating an agreement, meetings or conference calls are arranged to discuss the plan amendment. Proposed remedial actions to be included in the compliance agreement are coordinated with the appropriate state or regional review agencies. Although DEP’s concurrence is not required, DCA does attempt to ensure that the state's position is unified before agreements are executed. If a settlement agreement is reached, DCA will file the compliance agreement with DOAH for abatement of the hearing. If a settlement agreement is not reached, the issue will proceed to an administrative hearing under Chapter 120, F.S. If issues involved in the non-compliance finding are based on comments from DEP, staff will be asked to participate in the hearings.
The Department’s role in the review of plan amendments is one of assistance to DCA in determining whether the amendment is consistent with Chapter 187, F.S., (the State Comprehensive Plan), Chapter 163, F.S., and Chapter 9J-5, F.A.C. In accordance with 9J-11.008(12)(a), F.A.C., the Department advises DCA by evaluating the consistency of the amendment with the laws, rules, plans and policies administered by the Department.
Through participation in the local government planning process, the Department can implement ecosystem management on a proactive basis, identify resources that require protection, and direct inappropriate land uses away from environmentally sensitive areas. Participation in the local planning process not only provides an added level of protection not available through the regulatory process, but it also aids the permitting process by steering potentially problematic land uses away from sensitive areas, thereby reducing enforcement and compliance needs.
The State Comprehensive Plan contains various goals that are directly related to the responsibilities of DEP:
Goal 8 - Water Resources
These goals provide the framework for DEP’s involvement in statewide planning efforts. The Department is also involved in periodic updates of the state plan.
The eleven regional planning councils are required to develop strategic regional policy plans (SRPP) that provide guidance to their regions and local governments for multi-jurisdictional matters, including management of regional bodies of water and environmental resources of regional importance. The SRPPs must be consistent with the State Comprehensive Plan and be specific enough to provide policy guidance to local governments. They may eventually provide guidance for DRIs instead of what is now provided in Chapter 380. The Department has an opportunity to influence the context of these plans to ensure that they include policy guidance at least as protective as current DEP programs and policies. The Department is also using the SRPPs as an opportunity to promote ecosystem management and implementation of the Florida Water Plan.
While the original SRPPs have all been reviewed by DEP, each will be re-evaluated in the future. As with the local government comprehensive plans, these evaluations will result in amendments, revisions, and other relevant updates to the regional plans.
The legislature has required the development of more detailed state level plans in three key areas: water, land and transportation. The Florida Water Plan (373.036, F.S.), the Florida Land Development Plan (380.031(17), F.S.), and the Florida Transportation Plan (339.155, F.S.) are authorized by law, and all three must be consistent with the State Comprehensive Plan. DCA is responsible for the development of the Florida Land Development Plan and FDOT is responsible for the development of the Florida Transportation Plan. The Florida Water Plan was prepared by the DEP Office of Water Policy in conjunction with the five water management districts. DEP assists in coordinating and integrating this plan with the Florida Transportation Plan and the Florida Land Development Plan. Through the review of various local government plan amendments, strategic regional policy plans, and other planning documents, the Department has the opportunity to promote consistency with the Florida Water Plan.
Chapter 380 defines a development of regional impact (DRI) as a project that impacts multiple jurisdictions and provides for coordinated review of the projects through the regional planning councils. Lead authority for the Department’s review of DRIs rests with the Department’s districts, where district directors are ex-officio members of the regional planning councils. In many cases, the districts have identified the ecosystem management area leader as the coordinator for the review of DRIs. This individual coordinates DEP’s review of DRIs and integrates all program area concerns into the Department’s decision.
Areas of Critical State Concern (ACSC) are defined in 380.05 (2)(a) and (b) as areas:
a) containing, or having a significant impact upon, environmental or natural resources of regional or statewide importance, including but not limited to, state or federal parks, major rivers and estuaries, state environmentally endangered lands, Outstanding Florida Waters, and aquifer recharge areas, the uncontrolled private or public development of which would cause substantial deterioration of such resources; or
b) containing, or having a significant impact upon, historical or archaeological resources, sites, or statutorily defined historical or archaeological districts, the private or public development of which would cause substantial deterioration or complete loss of such resources, sites, or districts.
The designated Areas of Critical State Concern are the City of Apalachicola, the Green Swamp Area, the Big Cypress Area, the Florida Keys Area and the City of Key West Area. Each local government within the boundaries of a critical area is required to adopt comprehensive plans and land development regulations that are consistent with the Principles for Guiding Development for that area. Additionally, regional and state agencies in the ACSCs are required to coordinate their plans and conduct their programs and regulatory activities in a manner that is consistent with the Principles for Guiding Development.
As the state land planning agency, DCA has the authority to review all development permits in the ACSCs. If DCA determines that the administration of the local land development regulations or local comprehensive plan within the area is inadequate to protect the state or regional interest, the agency may institute appropriate judicial proceedings to complete proper enforcement of the land development regulations or plans [380.05 (13)].
If DCA determines that actions of state or regional agencies are inconsistent with the principles for guiding development, it can appeal those activities (i.e. issuance of an Environmental Resource Permit). All development within ACSCs must be in accordance with the requirements stated in Chapter 380.
Plan amendments, including those based upon evaluation and appraisal reports, should be considered in the context of land use suitability. Permit processes are reactive, and more or less limited to the proposed plan of development at the particular site. Because a project is “permittable” does not make it “suitable” for the specific site. In general, planning provides for avoidance and protection, while permitting provides for minimization and mitigation. Planning for the protection of natural resources is based upon the principle that a location’s natural environmental characteristics render the site inherently more suitable for some land uses than for others.
A permit process does not necessarily attempt to look for appropriate sites to place development. Permitting processes identify site–specific resource constraints and result in approval, denial or approval with various mitigative actions aimed at minimizing potential negative impacts. A permitting process is limited in its ability to assess where development might best be located. On the other hand, planning for development siting may involve comprehensive evaluations addressing the availability of infrastructure, proximity of incompatible land uses, and the identification and avoidance of environmentally sensitive areas. Through the planning process, environmental problems can be avoided before any specific permit is sought.
Evaluation and Appraisal Reports (EARs)
While DEP is involved in the process of reviewing comprehensive plan amendments that result from a local government’s evaluation and appraisal report, the Department does not have a formal opportunity to review evaluation and appraisal reports themselves. Nonetheless, DCA or a local government will occasionally request that DEP be involved in the reviews by commenting on a draft evaluation and appraisal report. Through this opportunity, the Department can encourage local governments to amend their original comprehensive plans in accordance with broader state and regional goals and policies, and more importantly, help to ensure the consistency of EAR-based amendments with DEPs statutes, rules and programs. In these unique cases, reviewers should provide comments which inform and direct the local government toward plan amendments that encourage improved environmental results in specific program areas.
Strategic Regional Policy Plans (SRPPs)
The Department considers it essential to integrate ecosystem management guidance into Strategic Regional Policy Plans, particularly as that guidance is expressed in the Florida Water Plan. The Water Plan is the water resources component of the Department's ecosystem management implementation strategy and emphasizes an integrated regional framework for managing water resources to protect whole systems. The Florida Water Plan encourages consistency between state, regional and local water supply and land use planning so that local planning furthers the goals set out in the broader regional strategies. As with the original SRPPs, DEP’s reviews during the evaluation report phase will attempt to further integrate the guidance expressed in the Florida Water Plan.
1. A local government sends a plan document to OIP for coordination of DEP review.
2. DCA sends a request for preliminary or ORC review to OIP.
3. OIP staff member routes the document to the appropriate DEP division/district contacts.
4. The cover sheet requesting comments will indicate the comment review period (approximately two weeks), the name of the OIP staff member coordinating the review, and guidelines for reviewing the document.
5. The OIP staff member will gather and integrate all Department comments. If there are no internal disputes, a Department response letter is prepared and sent to DCA, the Governor’s Office or the RPC. If there are internal agency disputes, meetings are called to resolve them prior to preparing and sending the letter. Any proposed objections will also be reviewed by senior management and meetings will be scheduled as necessary. In the event that meetings are required, time clock constraints will necessitate cooperation on short notices of meeting schedules.
6. OIP will prepare and send all DEP letters directly to DCA.
7. The final DEP letter will be retained in the OIP files and copied to agency staff on request.
8. If hearings result, DEP staff, in consultation with the Office of General Counsel, will be requested to participate to support DEP’s position.
AREAS OF CRITICAL STATE CONCERN (ACSC): An area containing, or having a significant impact upon, environmental or natural resources of regional or statewide importance. Currently ACSCs include the Big Cypress Area, the Green Swamp Area, the Florida Keys and the City of Key West Area, and the City of Apalachicola area. DCA is responsible for promulgating rules establishing principles for guiding development in these areas. (380.05 F.S.)
CHAPTER 380, F.S., PART II: The state statute governing the Florida Coastal Management Program (FCMP). The Department of Environmental Protection is the lead agency for implementation of the FCMP. Section 380.23 addresses federal consistency requirements that implement section 307 of the Coastal Zone Management Act.
CIRCULAR A-95: Instituted in 1976, Circular A–95 reflected the first requirement for federal agencies to coordinate with state and local governments. Prepared by the Office of Management and Budget, the directive was the precursor to Presidential Executive Order 12372, which has been in effect since 1983.
COASTAL ZONE MANAGEMENT ACT (CZMA)/REAUTHORIZATION AMENDMENTS OF 1990, SECTION 307: A federal law that requires each federal agency activity, in or outside the coastal zone, that affects any land or water use or natural resource of the coastal zone, to be carried out in a manner which is consistent with the enforceable policies of approved state coastal management programs, to the maximum extent practicable. The issuance of federal licenses and permits and the granting of federal financial assistance are also subject to this consistency review.
ENVIRONMENTAL ASSESSMENT (EA): A document prepared pursuant to the National Environmental Policy Act that evaluates the environmental impacts of a proposed federal action. An EA determines either that a more detailed environmental impact statement needs to be prepared or that the proposed action will not significantly affect the quality of the human environment.
ENVIRONMENTAL IMPACT STATEMENT (EIS): A document prepared pursuant to the National Environmental Policy Act to evaluate the environmental impacts of a number of alternatives to a proposed federal action which has been determined to be significant. More detailed than an environmental assessment, an EIS is developed with greater involvement of the state and the public through participation in scoping, review of the draft EIS, and public hearings.
ENVIRONMENTAL LAND AND WATER MANAGEMENT ACT OF 1972 (CHAPTER 380, PART I): Law directing establishment of land and water management policies to guide and coordinate local decisions relating to growth and development within the State.
EVALUATION AND APPRAISAL REPORTS (EARS): Periodic assessments and updates of local government comprehensive plans.
EXECUTIVE ORDER 12372: This presidential order allows states to develop their own processes for review of federal activities and applications for federal assistance. It requires federal agencies to utilize the state process to ascertain the official views of state and local officials and to make efforts to accommodate concerns.
EXECUTIVE ORDER 95-359: Governor’s order that continues the function of the Intergovernmental Coordination and Review process for Florida, establishes the Florida State Clearinghouse in the Department of Environmental Protection as the state's single point–of–contact, and establishes the regional planning councils as regional clearinghouses. Requires the state to review all programs indicated as available for inclusion pursuant to Presidential Executive Order 12372.
FEDERAL CONSISTENCY REVIEW: A review to determine if a federal project is consistent or inconsistent with the laws contained in the Florida Coastal Management Program. The State Clearinghouse provides the structure for consistency review.
FINDING OF NO SIGNIFICANT IMPACT (FONSI): A conclusion reached following an evaluation of environmental impacts conducted under the provisions of the National Environmental Policy Act and its implementing regulations at 40 CFR 1500-1508.
FLORIDA COASTAL MANAGEMENT PROGRAM (FCMP): The FCMP consists of a network of 24 Florida Statutes administered by eleven state agencies and four water management districts. The FCMP statutes and rules provide the regulatory and administrative framework necessary to assure that federal activities affecting Florida's coastal resources are planned and implemented in conformance with the Coastal Zone Management Act. The FCMP is described in detail in a final environmental impact statement prepared by the State of Florida and approved by the Office of Coastal Resources Management within the National Oceanic and Atmospheric Administration.
FLORIDA TRANSPORTATION PLAN: A plan prepared by the Florida Department of Transportation to establish long–range goals for a 20 to 25–year period. Updated annually, it defines relationships between long–range and short–range goals of the 5–year work program.
FLORIDA WATER PLAN: An integrated, coordinated plan prepared jointly by the Department and the five regional water management districts to implement their statutory water management responsibilities regarding water supply, flood protection, water quality and protection of natural systems
INTERGOVERNMENTAL COORDINATION AND REVIEW (ICAR): The process utilized by the Florida State Clearinghouse to ensure that all federal applications and activities received for review are reviewed by state, regional and local agencies. The purpose of the ICAR process is to ensure that federal actions do not conflict with Florida's goals, policies, plans and objectives and that environmental and historical resources are protected. Typically, the review process is referred to as the “Clearinghouse Process” or the “A–95 process.”
LAND DEVELOPMENT REGULATIONS: Ordinances enacted by local governments for the regulation of any aspect of development. Zoning, rezoning, subdivision, building construction, sign regulations or any other development–related regulations must be consistent with the approved local comprehensive plan.
LOCAL GOVERNMENT COMPREHENSIVE PLANNING AND LAND DEVELOPMENT REGULATION ACT (CHAPTER 163, PART II): Provides statutory basis for the local government comprehensive planning process. Provides guidance regarding the preparation, adoption, and evaluation of comprehensive plans and plan amendments by cities and counties.
NATIONAL ENVIRONMENTAL POLICY ACT (NEPA): A federal law that requires federal actions to be evaluated for impact on the environment. Impacts are determined by preparing an environmental assessment or environmental impact statement. The regulations for preparing NEPA documents are found in 40 CFR 1500-1508.
NATIONAL HISTORIC PRESERVATION ACT: A federal law that requires federal actions to be evaluated by the State Historic Preservation Officer (SHPO) for impacts to historic properties listed, or eligible for listing, in the National Register of Historic Places, or otherwise of historical or architectural value. Florida's Secretary of State serves as the SHPO.
OUTER CONTINENTAL SHELF LANDS ACT: A federal law that governs the exploration, development and production of the oil, gas, and minerals of the federal seabed offshore of state territorial waters. The OCSLA prescribes specific responsibilities to the Department of the Interior and its lessees and permittees regarding coordination with the Governors of affected states and compliance with the federal consistency requirements of the CZMA, NEPA and other federal laws. All leasing programs, individual lease sales, and plans of exploration, development and production are reviewed by the state.
SCOPING: An early coordination process in which a federal agency consults with the state and the affected public to determine the appropriate “scope” or extent of an environmental impact statement. Scoping is coordinated through the ICAR process and may include a meeting with the federal agency.
STATE AGENCY STRATEGIC PLANS: Statement of the priority directions an agency will undertake to carry out its mission within the context of the State Comprehensive Plan and any other statutory mandates and authorizations given to the agency. Agency strategic plans must be consistent with and further the state comprehensive plan. (186.021, F.S.)
STATE COMPREHENSIVE PLAN (CHAPTER 187): Goals and policies intended to provide long–range policy guidance for the orderly social economic and physical growth of the state.
STRATEGIC REGIONAL POLICY PLANS: Goals and policies intended to provide long–range guidance for the physical economic and social development of a given region. The plan must address affordable housing, economic development, emergency preparedness, natural resources of regional significance and regional transportation, at a minimum. Each category must be consistent with the State Comprehensive Plans. (186.507, F.S.)
TRANSLATIONAL PLANS: State–level plans for the protection and use of water resources (373.036) and transportation systems and facilities (339.155).
Last updated: May 23, 2012
Florida Department of Environmental Protection,
3900 Commonwealth Boulevard M.S. 47 Tallahassee, Florida 32399
850-245-2161 (phone) / 850-245-2128 (fax)