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Intergovernmental Programs Procedure and Reference Manual

ABOUT US
  Purpose of Manual

STATE CLEARINGHOUSE REVIEWS
  Background
  Coastal Zone Management Act
  National Environmental Policy Act
  Guidelines for Comments on Clearinghouse Projects
  Guidelines Regarding Inconsistencies/Objections
  Summary of Clearinghouse Review Process within DEP

COMPREHENSIVE PLAN REVIEWS
  Background
  Guidelines for Making Responses to Planning Documents
  Summary of Plan Review Process

GLOSSARY

ABOUT US

Under its Clearinghouse program, OIP:

  • Serves as the state’s single point-of-contact for the Florida State Clearinghouse.
  • Coordinates the Department's position on the consistency of federal projects and federally funded activities with departmental policies and regulations, and provides comments to the Florida State Clearinghouse in accordance with Presidential Executive Order 12372, the National Environmental Policy Act (NEPA), the Coastal Zone Management Act (CZMA) and other federal laws and policies.
  • Coordinates DEP's position regarding the statements of environmental feasibility for Florida Department of Transportation projects as required under Chapter 338, F.S. and roadway alignment planning projects.

Under its Comprehensive Plan program, OIP:

  • Coordinates the Department of Environmental Protection’s (DEP) review of local government comprehensive plans, plan amendments, sector plans and rural land stewardship area plans..
  • Provides input regarding specific growth management policy issues and coordinates DEP’s implementation of related recommendations.
  • Coordinates DEP's involvement in Florida's Areas of Critical State Concern program.

Under its Outer Continental Shelf (OCS) program, OIP:

  • Coordinates state reviews of offshore activities under the Outer Continental Shelf Lands Act (OCSLA), the National Environmental Policy Act (NEPA), and the Coastal Zone Management Act (CZMA).
  • Reviews proposed laws, rules, information requests, and other materials associated with offshore activities.
  • Serves as the state’s single point-of-contact for all matters related to OCS oil and gas activities that affect Florida.
  • Serves as the contact point for the U.S. Environmental Protection Agency’s Gulf of Mexico Program (GMP), which is a network of state and federal agencies, citizens, businesses, industry, and non-profit organizations committed to managing and protecting the resources of the Gulf of Mexico.

Purpose of Manual

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.

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STATE CLEARINGHOUSE REVIEWS

Background

Intergovernmental Coordination

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.

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Coastal Zone Management Act (CZMA)

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;
B. activities which require a federal license or permit;
C. activities conducted pursuant to an Outer Continental Shelf Lands Act exploration plan or lease; and
D. federally funded activities.

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.

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Florida Coastal Management Program

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

Ch. 161  Beach and Shore Preservation
Ch. 163, Pt II  Local Govt. Comp. Planning and Land Development Regulation Act
Ch. 186  State and Regional Planning
Ch. 252  Emergency Management
Ch. 253  State Lands
Ch. 258  State Parks and Preserves
Ch. 259   Land Conservation Act of 1972
Ch. 260  Recreational Trails System
Ch. 267  Archives, History and Records Management
Ch. 288  Commercial Development and Capital Improvements
Ch. 334  Transportation Administration
Ch. 339  Transportation Finance
Ch. 370  Saltwater Fisheries
Ch. 372  Wildlife
Ch. 373  Water Resources
Ch. 375  Outdoor Recreation and Conservation
Ch. 376  Pollutant Discharge, Prevention and Removal
Ch. 377  Energy Resources
Ch. 380  Land and Water Management
Sections
381.001, 381.0011,
381.0012,
381.006,
381.0061,
381.0065,
381.0066,
381.0067
 Public Health; General Provisions
 Ch. 388  Mosquito Control
 Ch. 403  Environmental Control
 Ch. 582  Soil and Water Conservation

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.

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National Environmental Policy Act (NEPA)

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.

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Guidelines for Comments on Clearinghouse Projects

If you receive a request for comments from OIP, please consider the following guidelines:

  • Clearly state the position of your program area. OIP needs to understand clearly the division or district's position with respect to consistency. Under federal regulations, the state may not respond with a conditional consistency concurrence. The proposed action is either consistent or inconsistent. Although consistency concurrences are often qualified with statements expressing concern or reservations, it is important for reviewers to make clear whether their concerns are to be used as the basis of a consistency objection. If a division or district wants to find a project or activity inconsistent with the Department’s statutory authorities under the Florida Coastal Management Program (FCMP), the director or an appropriate designee must sign the response sent to OIP. For further information regarding the FCMP, please refer to the Coastal Zone Management Act section above, and for further guidance regarding inconsistencies and objections see the next section.
  • Make comments appropriate to the stage of the project. For large federal projects, there will be a succession of opportunities to review the project as it proceeds from early planning to later stages of design, environmental assessment and permitting. Comments and consistency responses should be stated with consideration for the stage of the project. For instance, it is unlikely that a scoping notice would be found inconsistent. A concurrence with reservations, or a concurrence accompanied by a statement of potential inconsistency, may be appropriate at early planning stages when the design of the project is still under consideration. In this way, a project may be steered toward an acceptable design. Consistency objections are most likely to arise during the review of the draft environmental document, since this is usually the point at which sufficient information on the design and its impacts will be known. The NEPA document review is also a key decision point for the state to make known any serious concerns regarding the project or the adequacy of the NEPA document.
  • Provide information on the potential effects of an activity on resources such as wetlands, floodplains, groundwater, natural systems, etc. Through project review, the Department has the ability to encourage appropriate planning to facilitate ecosystem management efforts. The knowledge of DEP staff regarding on-site and area resources is key to ensuring appropriate planning for protection of Florida’s ecosystems.
  • Evaluate and comment on the adequacy of NEPA documents with regard to proposed alternatives, supporting data and information, and conclusions of environmental impact. The proposed action in the NEPA document is typically under review for consistency with the FCMP. If so, the reviews are wrapped together and both will be addressed in the DEP response. As such, the information in the NEPA document not only supports the conclusions of environmental impact stated in the document, but also serves as the necessary data and information required to support the consistency determination. Therefore, the sufficiency of the NEPA document is also a consistency matter. Deficiencies in the document, such as inaccurate or insufficient descriptions of the affected environment, inaccurate or incomplete data, and poorly substantiated impact conclusions should be noted. You should also identify alternatives preferable to those specified in the document. Commentors should also explain any disagreements they may have with the conclusions of impact stated in the document, particularly if the document is a Finding of No Significant Impact (FONSI) and there is disagreement regarding the significance of the impacts.
  • Please identify possible permit requirements, applicable statutory rules, necessary proprietary authorizations, and contact persons. For activities regulated under Chapter 373, please note whether the proposed activity has been delegated to a water management district or local government for permitting.

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Guidelines Regarding Inconsistencies/Objections

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.

  • An inconsistency/objection must be based on enforceable policies. Only enforceable policies incorporated into Florida's Coastal Management Program may be the basis of a consistency objection to a proposed activity. The statutes and implementing regulations included in the approved Florida Coastal Management Program are the enforceable policies of the program.
  • An inconsistency/objection letter must describe how the proposed activity is inconsistent. There must be a complete description of how a project is inconsistent with applicable enforceable policies. The objection letter should cite the applicable DEP statutory and rule provisions with which the proposed action is inconsistent, and describe in detail how the project is inconsistent with those authorities.
  • If an inconsistency/objection is based on insufficient information, the objection letter must describe what information is necessary and explain why it is needed. A state may object to a project based on insufficient information if the applicant has failed, following a written request, to supply the required information. In that case, the objection letter must explain the nature of the information requested and state the necessity of having that information to determine consistency.
  • For inconsistencies/objections, identify and discuss consistent alternatives. An objection letter must identify alternatives that would allow the proposed action to be consistent. Alternatives should be described with as much specificity as possible to allow federal agencies, applicants and, potentially, the U.S. Secretary of Commerce, to determine if the alternatives are available and reasonable. While a state is not required to include consistent alternatives for objections based on insufficient information, alternatives are considered on appeals from objections to the issuance of federal permits or financial assistance awards. Therefore, the state should still include some discussion of alternatives in its comment letter.
  • A statement of inconsistency must be signed by a district/division director. If you are forwarding a letter of inconsistency/objection to OIP, it must be signed by the appropriate division or district director or designee.

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Summary of Clearinghouse Review Process within DEP

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.

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COMPREHENSIVE PLAN REVIEWS

Background

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:

  • Chapter 380, Part I, the Environmental Land and Water Management Act, which directs the integration and coordination of land and water management activities and specifically authorizes Developments of Regional Impact (DRI) and Areas of Critical State Concern.
  • Chapter 187, the State Comprehensive Plan, which sets forth the goals that articulate Florida’s desired future.
  • Chapter 186, on State and Regional Planning, which provides direction for the integration of state, regional and local planning efforts. This act specifically requires the development of agency strategic plans and Strategic Regional Policy Plans (SRPP).
  • Chapter 163, Part II, the Local Government Planning and Land Development Regulation Act, which directs local government planning and includes requirements for Evaluation and Appraisal Reports (EAR).

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.

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Local Government Comprehensive Plans

Growth management legislation was passed in 1985 in response to Florida's commitment to provide text the facilities and services that communities need to foster economic growth and preserve natural replaces amenities. The importance of comprehensive planning cannot be overstressed, because it results in strike-thru decisions regarding long-term issues such as environmental protection and economic development. text Section 163.3177, F.S., requires that local government comprehensive plans provide the policy foundation for local planning and land use decisions on capital improvements, conservation, intergovernmental coordination, recreation, open space, future land use, housing, transportation, coastal management (where applicable) and public facilities.

Since Florida’s county and city governments have now adopted local government comprehensive plans, DEP’s ongoing plan review activity involves amendments to the previously adopted plans. The reviews provide DEP an opportunity to guide local development in a manner consistent with the state’s 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) 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.

Comprehensive Plan Review Process
The review process is initiated when a local government transmits a proposed or adopted comprehensive plan amendment to the appropriate state and regional agencies, including: the DEP, Department of Economic Opportunity (DEO), Department of State, Department of Transportation, regional planning councils and water management districts. Other agencies that may be included in the review process are: the Department of Education (if the amendment affects schools), Department of Agriculture and Consumer Services and Florida Fish and Wildlife Conservation Commission (for county amendments); county governments (for municipal amendments); and the commanding officer of any affected military installation. The three review processes for amending comprehensive plans include the Expedited State Review, State Coordinated Review and Small Scale Review.

With the exception of small scale amendments, which involve land use changes on parcels of ten acres or less (or 20 acres or less for parcels within rural areas of critical economic concern) and are exempt from state and regional review, most amendments proposed and later adopted by local governments are now reviewed through the Expedited State Review process. The DEP and other state and regional agencies must provide comments directly to the local government within 30 days of receiving an expedited review amendment and copy DEO, the state land planning agency.

Amendments that would change land uses within an Area of Critical State Concern, create a Rural Land Stewardship Area or sector plan, or update a comprehen¬sive plan based upon an Evaluation and Appraisal Report, also referred to as EAR, are required to use the State Coordinated Review process. In a coordinated review, DEP must provide comments to DEO within 30 days of its receipt of a complete amendment package. DEO has a total of 60 days from receipt to provide the local government with the state’s objections, recommendations and comments. .

In both coordinated and expedited review processes, DEP provides comments addressing important state resources and facilities that will be adversely impacted by the amendment. DEP must state with specificity how the plan amendment will adversely impact an important state resource or facility and recommend measures the local government may take to eliminate, reduce or mitigate the adverse impacts. Through OIP, DEP comments on the following important state resources and facilities:

  • Air and water pollution
  • Wetlands and other surface waters of the state
  • Federal and state-owned lands and interest in lands, including state parks, greenways and trails, and conservation easements
  • Solid waste
  • Water and wastewater treatment
  • Everglades ecosystem restoration

If there are issues that cannot be resolved, DEO may challenge an adopted plan amendment. Detailed guidelines for submittal and processing of comprehensive plan amendments may be found at http://www.floridajobs.org/community-planning-and-development.html.

 

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State Comprehensive Plan

The State Comprehensive Plan contains various goals that are directly related to the responsibilities of DEP:

Goal 8 - Water Resources
Goal 9 - Coastal and Marine Resources
Goal 10 - Natural Systems and Recreational Lands
Goal 11 - Air Quality
Goal 13 - Hazardous and Nonhazardous Materials and Waste
Goal 14 - Mining
Goal 15 - Land Use
Goal 19 - Cultural and Historical 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.

Strategic Regional Policy Plans

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.

Translational 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.

Developments of Regional Impact

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

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.

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Guidelines for Making Responses to Planning Documents

Local Government Comprehensive Plans and Plan Amendments

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.

  • State your division or district’s position clearly. OIP needs to clearly understand the position with respect to the consistency of the amendment with department laws, plans, rules and policies.
  • Comment on the potential effects of a land use or policy change on existing resources. The following is a listing of issues that DEP can address through the plan review process:
    • potential impacts to natural resource systems such as wetlands, rivers, bays, lakes, beaches and shores, submerged lands, floodplains, wildlife habitat, living marine and estuarine resources, and fisheries including shellfish;
    • potential impacts to wellfield protection, potable water supplies, facility siting, water supply, stormwater management, solid and hazardous waste, domestic and industrial waste; and
    • potential impacts to cultural and historical resources, recreation and parks, state–owned lands, land acquisitions, and greenways and trails.
  • Describe any insufficiencies in information. A local government may not provide sufficient data and analysis to support a proposed action. We should therefore clearly state what information is necessary to adequately evaluate and support the proposed amendment. We may also object to a project based on insufficient supporting information.
  • If appropriate, identify possible permit requirements, applicable statutory rules, necessary proprietary authorizations, and contact persons. For activities regulated under Chapter 373, please note whether the proposed activity has been delegated to a water management district or local government for permitting. Since the adoption of the Environmental Resource Permit, some of DEP’s previous wetlands permitting authority has been transferred to the WMDs. Activities subject to WMD regulations will still be reviewed by DEP to address any proprietary and management requirements, and authorities and policies that may apply.
  • If you are objecting to an amendment, please describe how it conflicts with the Department’s authorities. The objection letter should cite the applicable DEP statutory and rule provisions with which the proposed amendment is inconsistent, and describe in detail how the project is inconsistent with those authorities. A formal recommendation must also be provided which describes how to revise the plan or plan amendment to satisfy the objection.

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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.

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Summary of Plan Review Process

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.

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GLOSSARY

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).

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Last updated: June 05, 2013

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