Ed de la Parte Says a 2080 Future Does Not Affect Public Participation

TAMPA, Fla.--(Business Wire)--
The following is a statement by Ed de la Parte of De la Parte and Gilbert Law
Firm regarding SB 2080:

SB 2080 does not reduce public access to decision makers or negatively affect
the right of third parties to challenge permits issued by water management
districts.

Today, under the current law, the Executive Director or his or her designee
takes final action on all general permits. That includes about 80 percent of the
permits issued by the agency. The Governing Board takes final action on all
individual permits, which covers the remaining 20 percent.

Under the new law, the Executive Director or his or her designee will take final
action on all permits, with the exception of those few permits that are proposed
for denial. Under both the existing law and the proposed law the public has
complete access to the permit decision makers. They have the right to
communicate in writing with either the Executive Director or the Governing Board
members in an attempt to influence their decision.

I would argue that their ability to influence the permitting decision will be
enhanced because it will be easier and more convenient for the public to
correspond or meet with one individual located at one office than to attempt to
meet with 9 or more governing board members located throughout the district.
Having just done this on behalf of a client, traveling to 9 separate locations
throughout a 16-county area is a real investment in time. And, governing board
members are not required to meet with either permit applicants or opponents.
Most do. Some won`t.

The bill does not limit the public`s ability to challenge permitting decisions.
Regardless of whether the permitting decision is made by the Executive Director
or the Governing Board, the public can challenge the decision. At the
administrative hearing, the public has the right to present evidence and
argument in support of denying or modifying a permit and the administrative law
judge will make a recommendation to the water management district based on the
greater weight of evidence.

It is true that most final orders will no longer be issued after a public
hearing. Even now, the public`s ability to influence the Governing Board`s
decision on a recommended order is extremely limited. The Governing Board is
bound by law to base its decision on the record of the administrative hearing
and cannot overturn the findings of fact of an administrative law judge. In
fact, the Governing Board cannot consider any new evidence or argument presented
by the public, unless it was part of the record of the administrative hearing.

In my 33 years of representing clients before water management district
governing boards, I cannot think of a single case where the Governing Board
reversed a recommended order. In fact, given that most governing board members
are not attorneys and are unpaid volunteers, it has been my experience that they
are much more reluctant to deviate from a recommended order than an executive
agency head.

Finally, the new process specified by SB 2080 is really no different from the
process of issuing permits under Chapter 403. Today, the DEP Secretary or his or
her designee issues all permits under Chapter 403, Florida Statutes. This has
been the case since the old Department of Pollution Control, with a collegial
board, was replaced by the Department of Environmental Regulation, with a single
agency head in 1975.

The permits issued by the DEP secretary include wastewater and air pollution,
construction and discharge permits, hazardous waste permits and dredge and fill
permits to name a few. These permits are just as controversial as any permit
issued by a water management district. No one complains that the DEP permitting
process is flawed because it reduces public access to decision makers or
diminishes the public`s ability to challenge those decisions. If the DEP process
is fair, then I see no reason why the new procedure created by SB 2080 would be
deemed unfair.

De la Parte and Gilbert Law Firm
Ed de la Parte, 813-228-2775

Copyright Business Wire 2009