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2014 Summer Newsletter

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2014 Legislative Session Recap

The 2014 Legislative Session adjourned at 10:39 p.m. on Friday evening, May 2, 2014.  The Legislature adopted a $77.1 billion budget for the 2014-15 fiscal year, the largest in Florida’s history.  In total, there were 1,812 bills filed during the 2014 Session and only 264 bills passed, the fewest in over a decade.

The Legislature passed bills dealing with issues such as providing in-state tuition for children of undocumented immigrants, legalizing a non-euphoric strain of medical marijuana for epileptic children, providing tax subsidies to professional sports facilities, expanding eligibility for private-school vouchers, allowing for an increased interstate speed limit to 75 mph and changing the start of the 2016 Legislative Session from March to January.

Major issues that did not pass during the 2014 Session included raising the state’s minimum wage to $10.10 per hour, creating a statewide gaming commission, allowing casinos in South Florida, closing the state pension plan to newly elected officials and top employees, local government pension plan reform, repealing Florida’s “Stand Your Ground” law, expanding the scope of practice for advanced registered nurse practitioners, expanding Medicaid to include more Floridians and repealing the use of red-light cameras.

The rebounding economy resulted in a projected budget surplus allowing the Legislature to pass a $77.1 billion budget, about $2.5 billion larger than the previous year’s budget.  The spending breakdown of the $77.1 billion budget includes:

  • $3.1 billion in reserves within the Budget Stabilization Fund, often called the “Rainy Day Fund”;
  • $500 million in tax and fee cuts;
  • $575 million increase (2.6% per student) in public school funding;
  • $170 million for projects to improve the Indian River Lagoon and other water bodies dealing with discharges from Lake Okeechobee;
  • $232 million in water projects;
  • $30 million for springs protection; and
  • $25 million for beach restoration.

Of the roughly $500 million in election-year tax cuts, a priority of Governor Rick Scott, $400 million was associated with a rollback of motor vehicle registration fees which were increased in 2009 under then-Governor Charlie Crist. Another $105 million in tax cuts include a hurricane preparedness sales tax holiday (May 31-June 8), followed by a back to school tax holiday beginning in August on clothes, school supplies and some electronics, and a lifting of the sales tax on energy-saving appliances for three days in mid-September. The tax plan also includes tax exemptions for children’s car seats and bicycle helmets, college meal plans and specialty diet food for pets.

With the giant shadow being cast by the Florida Water and Land Amendment (now known as Amendment 1) November 2014 ballot, which will provide $19 billion over the next 20 years to acquire and restore conservation lands, the Legislature attempted to address the protection and restoration of Florida’s springs.  The Senate’s original version of its springs legislation came with an annual price tag of nearly $400 million, for sewage hookups and septic tanks improvements in springs areas.  The bill that ultimately passed the Senate reduced that cost to about $30 million per year and would have forced developers, farmers, local governments and septic tank owners to cut pollution flowing into the state’s most imperiled springs.  Ultimately, the House did not take up the legislation but the stage has been set for that issue, and water issues in general, to be addressed during the next two years.

Other legislation of note that passed included:

  • HB 7023 which extends by 2 years the expiration of permits issued by DEP, water management districts and local government building permits and development orders;
  • HB 7171 which exempts DEP rules setting minimum flows and level for specified rivers from legislative ratification;
  • SB 1632 which increases transparency and accountability of special districts; and
  • SB 374 which grandfathers certain cities’ referendum and initiative language for comprehensive plan amendments in place prior to June 1, 2011.

Other legislation of note that died included:

  • HB 703/SB 1464 which were omnibus environmental regulation bills;
  • HB 813/SB 1248 relating to municipal water and wastewater utilities;
  • HB 1241/SB 372 relating to developments of regional impact;
  • HB 1077/SB 1310 relating to growth management and development exactions;
  • HB 395/SB 1314 relating to growth management and private property rights; and
  • HB 1129/SB 1518 and HB 793/SB 802 relating to community development districts.

Post-session, the focus now shifts to Governor Scott who will review the budget line items and all the bills passed this session to decide on whether to veto or approve the legislation.  He should start to receive these bills in mid-May and early June and then has 15 days to act on the fate of the bills, once he receives them.

The Lewis, Longman and Walker Legislative and Governmental Affairs Practice Group, Lori Killinger (Chair), Terry Lewis and Chris Lyon, seamlessly combine substantive legal experience with an in-depth knowledge of legislative and regulatory processes. Considered one of the most trusted political advisors in Florida, we thrive on helping our clients navigate the maze of Florida’s legislative and political arenas.

For more information, visit www.llw-law.com.

How a Bill Becomes a Law

The play “How a Bill Becomes a Law,” written by Terry E. Lewis, took place at the Florida Association of Special Districts (FASD) Annual Conference on June 18th in Fort Myers, Florida. Mr. Lewis serves as General Counsel to the FASD and Lewis, Longman & Walker is a long-time supporter and sponsor of the annual conference.

Terry Lewis also participated in a Water Districts Roundtable Discussion and Jim Linn gave a FRS update at the upcoming FASD conference.  For more information, contact Terry E. Lewis at 561-640-0820 or at tlewis@llw-law.com.

LLW Attorneys Selected as 2014 Super Lawyers and Rising Stars

Lewis, Longman & Walker Shareholders Terry E. Lewis, Stephen A. Walker, Michelle Diffenderfer, and Alfred J. Malefatto have been selected as 2014 Florida Super Lawyers in the area of Environmental Law.

LLW Tallahassee Shareholder Anne Longman has been selected as a Super Lawyer in Administrative Law and Jacksonville Shareholder Wayne E. Flowers has been selected as a 2014 Super Lawyer in Environmental Litigation.

These LLW Shareholders share the Super Lawyer designation with only 5% of attorneys in Florida. Florida Super Lawyers are nominated by fellow attorneys who have personally observed them in action, whether as opposing counsel, co-counsel or through other firsthand observations in the courtroom. The background and professional achievement of each candidate are researched before the final decision is made.

Additionally, Shareholders Tara W. Duhy has been named 2014 Rising Stars in the area of Environmental Law. Super Lawyers selects its Rising Stars using peer nominations in combination with third party research. Each candidate is 40-years-old or younger or in practice for 10 years or less, and is evaluated on 12 indicators of peer recognition and professional achievement.

For more information, please visit our website at www.llw-law.com or www.superlawyers.com.

LLW Receives “Band 1” Ranking in Environmental Law by Chambers and Partners

Lewis, Longman & Walker has been rated as a leading law firm by Chambers and Partners, receiving a Band 1 ranking in environmental law. Lewis, Longman & Walker is one of only three law firms in Florida to receive this top-tier ranking. Results were recently published in the Chambers USA 2014 Guide. Rankings are based on interviews with law firms and clients.

Additionally, five shareholders from Lewis, Longman & Walker have been recognized as leaders in environmental law in the Guide: Terry E. Lewis, R. Steven Lewis, Stephen A. Walker, Robert P. Diffenderfer and Alfred J. Malefatto.

The Chambers USA Guide recognizes attorneys that excel in their field. Rankings are based on technical legal ability, professional conduct, client service, commercial astuteness, diligence, commitment, and other qualities most valued by clients. Chambers USA ranks the leading firms and lawyers in an extensive range of practice areas throughout the United States. Chamber and Partners is one of the long standing leading directories of the legal profession. To learn more about the Chambers USA Guide, please visit www.chambersandpartners.com/USA.

LLW Shareholders Recognized in the 2014 South Florida Legal Guide as Top Lawyers

Lewis, Longman & Walker Shareholders Stephen A. Walker has been selected by the 2014 South Florida Legal Guide as Top Lawyers in the area of Environmental Law. Shareholder Terry E. Lewis has been selected as a Top Lawyer in the area of Governmental Law.

The South Florida Legal Guide recognizes attorneys who have been in practice for at least 15 years. Selection is based on peer nominations. Nominations are reviewed by the editorial department, which makes the final selections. Factors such as standing with the Florida Bar, accomplishments and other factors that may attest to the individual’s credentials are taken into consideration. For more information on the South Florida Legal Guide, visit www.sflegalguide.com.

New USEPA Report on Connectivity of Streams and Wetlands May Affect CWA Jurisdiction

By: Alfred J. Malefatto and Michelle Diffenderfer

In an effort to better define the scope of regulatory jurisdiction over non-navigable upstream waters and wetlands, the US Environmental Protection Agency’s (USEPA’s) Scientific Advisory Board (SAB) has released a draft report titled Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence. The draft report is focused on small or temporary nontidal streams, wetlands, and open waters, and “will inform an upcoming joint EPA/U.S. Army Corps of Engineers [USACE] rulemaking to enhance protection of the chemical, physical and biological integrity of our nation’s waters by clarifying Clean Water Act [CWA] jurisdiction,” according to USEPA’s Sept. 25, 2013, notice announcing release of the draft report.

The focus of the draft report is on surface and shallow subsurface connections from small or temporary nontidal streams, wetlands, and other open waters, and the mechanisms by which these waters may affect the functions or conditions of downstream waters. The net effect of the draft report could be a complete reevaluation of how CWA jurisdiction is determined. The USEPA draft report is based on a review of more than 1,000 publications in the peer-reviewed scientific literature and reaches the following initial conclusions:

• Streams, regardless of their size or how frequently they flow, are connected to and have important effects on downstream waters.

• Wetlands and open waters in floodplains of streams and rivers and in riparian areas (transition areas between terrestrial and aquatic ecosystems) are integrated with streams and rivers.

• There is insufficient information to generalize about wetlands and open waters located outside of riparian areas and floodplains and their connectivity to downstream waters.

PROPOSED RULE ON CWA JURISDICTION

Along with the release of the draft report, USEPA and USACE have sent to the Office of Management and Budget (OMB) a draft rule on CWA jurisdiction for interagency review. As of this writing (January 2014), the draft rule has not been released to the public, but USEPA’s Sept. 25, 2013, notice states that the draft report when finalized will provide the scientific basis needed to clarify CWA jurisdiction, including a description of the factors that influence connectivity and the mechanisms by which connected waters affect downstream waters.  Along with the proposal of the new rule, USEPA has withdrawn from OMB review its 2012 proposed guidance on CWA jurisdiction.

The USEPA notice explains that the purpose of the proposed rule is to clarify uncertainty concerning the jurisdiction of the CWA that has arisen as an outgrowth of recent Supreme Court decisions. The USEPA notice goes on to state that the recent decisions underscored the need for USEPA and the public to better understand the connectivity or isolation of streams and wetlands relative to larger water bodies such as rivers, lakes, estuaries, and oceans, and to use that understanding to underpin regulatory actions and increase certainty among various CWA stakeholders. USEPA has clarified that the rule will not change existing regulatory exemptions or exclusions for agricultural operations.

TWO SIGNIFICANT COURT CASES

To better understand USEPA’s intent, it is helpful to consider recent Supreme Court cases that appear to be of concern to the agency. In June 2006, the Supreme Court decided two cases, Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers, both of which significantly revised the federal wetland regulatory program under the CWA. Rapanos was a complicated decision with five separate opinions concerning how federal wetland jurisdiction should be determined. Despite the divergent opinions coming from the Supreme Court, ranging from Justice Antonin Scalia’s very narrow application of the USACE’s jurisdiction to Justice John Paul Stevens’ endorsement of how the USACE and USEPA applied their jurisdiction at the time, the opinion that has had the most staying power was Justice Anthony Kennedy’s concurring opinion, which took a middle-of-the-road approach. Kennedy recognized the importance of protecting water quality while emphasizing that there must be a “significant nexus” between non-navigable waters and/or isolated wetlands and navigable-in-fact waters before the USACE could assert jurisdiction over the non-navigable waters.  The varying interpretations of the case and its effect on wetland jurisdictional issues have continued to be a source of discussion, challenges, and various attempts at guidance from the USEPA and the USACE. Specifically the concept of what entails the required “significant nexus” to confirm federal jurisdiction over non-navigable waters has been the greatest source of contention.

In 2007 the USEPA and the USACE issued joint regulatory guidance to clarify how they would determine jurisdiction under the CWA post-Rapanos. A fairly complicated form was prepared to guide the regulated public on whether they had jurisdictional wetlands on their property that needed permitting before impact. However, much of the regulated community felt that the guidance did not follow the Rapanos case but in fact validated what was already the agencies’ standard for wetland jurisdiction at the time, with only a limited reduction in the scope of federal jurisdiction over isolated wetlands.

Some concern was raised that the agencies had done this by way of guidance instead of pursuant to rulemaking with opportunity for comment and challenge by the public. Then, in 2012 the agencies again submitted proposed guidance on CWA jurisdiction for interagency review; as previously noted, this proposed guidance has been with drawn in favor of proposed new regulations, which likely will follow completion of the draft report.

Water Wars in the Southeast

By:  Wayne E. Flowers

As University of Florida graduates, the authors of this article tend to view the war between Georgia and Florida as one that is annually settled on the college football field, a rivalry that has raged since 1915. However, for the past two decades there has been a more heated war between the two states over water supply. Florida, along with Alabama, claims that Georgia—Atlanta in particular—is taking more than its fair share of water from the Chattahoochee, Flint, and Apalachicola River Basins, which is having adverse effects on the economies and the environments of Florida and Alabama. Florida and Alabama point to Atlanta’s burgeoning population and the resultant water demands as the root of the problem.

Atlanta was founded as a railroad hub but has since grown to be the largest US city without a major water body nearby. Consequently, Atlanta relies heavily on two reservoirs under federal jurisdiction to provide roughly 75% of the city’s water supply. Atlanta’s increasing demand for water has left downstream users (i.e., Florida and Alabama) feeling that Georgia is claiming more than its rightful part of the water to the detriment of the downstream states. Recently, Florida added a new procedural twist to the Southeast’s water wars by directly suing Georgia in the US Supreme Court over competing water demands.

A LAWSUIT OVER BALANCING DEMANDS

The lawsuit against the state of Georgia was filed by the state of Florida on September 29, 2013. This dispute is representative of an increasing problem facing many states and cities across the country—that is, addressing the issue of increased water demands to meet the needs of growing urban areas while balancing the water demands of downstream users (other states and cities). For more than two decades, Florida, Georgia, and Alabama have engaged in this struggle, which has been dubbed the Tn-State Water Wars. The dispute centers on withdrawals from Lake Lanier near Atlanta, a federal reservoir on the Chattahoochee River. Lake Lanier was created 50 years ago when the United States Army Corps of Engineers (USACE) constructed a dam on the Chattahoochee River. The Chattahoochee River ultimately merges with the Flint River to form the Apalachicola River, which in turn feeds freshwater into Florida’s Apalachicola Bay—water that is essential to the region’s shellfish industry and economy.

As the population of Atlanta has grown, so has its water demands and the water it uses is pumped out of the same river basin that Florida and Alabama rely on.  Florida claims that the increasing demand for water by farmers in southern Georgia and Atlanta’s residents has resulted in reductions in freshwater entering the Apalachicola Bay. This reduction in water flow disrupts the delicate salinity balance necessary to support Florida’s shellfish, a vital industry for Florida’s economy. In essence, this battle is one over competition between human water demands upstream and ecological water needs of downstream environments and the economies that rely on those environments.

A HISTORY OF LITIGATION

This is not the first time Georgia and Florida have been engaged in litigation over water consumption from Lake Lanier and its impact on the Apalachicola Bay River Basin. In 2009, Alabama sued the USACE over its operations of Lake Lanier, an action in which both Georgia and Florida intervened. Lake Lanier was originally created for the purpose of providing flood control, hydropower, and navigation for the surrounding region.

The USACE, however, issued contracts to municipal water supply providers and diverted water for public supply purposes to the Atlanta region. Alabama’s lawsuit was put on hold so the three states and the USACE could attempt to negotiate a settlement.

The negotiations resulted in interstate water compacts that were approved by the three states’ legislatures and were ratified by the US Congress in 1997.  The compacts set up a framework for the parties to collaboratively determine the best method for managing the affected water resources. The compacts expired before any agreement on management of the water resources was reached. Thus, in 2009 the judge presiding over the case ruled that Atlanta was not authorized to withdraw water from Lake Lanier and ordered Atlanta’s water withdrawals to be drastically restricted. This ruling was overturned by the Eleventh US Circuit Court of Appeals, with the court determining that Atlanta had rights to the use of water from the Lake Lanier reservoir with certain restrictions. The court essentially kicked the matter back to the USACE to figure out how to fairly apportion water supplies from Lake Lanier for various uses (potable water, human, and ecological needs)—a study that will take years to complete.

Firm News

Michelle Diffenderfer was featured in the Women in Power issue of Jupiter Magazine.  Click here to view the article.

LLW Shareholder Michelle Diffenderfer has been nominated for the Executive Women of the Palm Beaches’ Women in Leadership Award. Michelle was one of five women nominated from the private sector. Mrs. Diffenderfer is a Shareholder in the law firm of Lewis, Longman & Walker, P.A., and holds an AV Preeminent Rating by Martindale-Hubbell. Her practice focuses on environmental, water, natural resources, and land use law, specifically, permitting and enforcement. For more information about Michelle Diffenderfer, click here to see her online resume.

LLW will be sponsoring the 2014 American Indian Arts Celebration scheduled for November 7-8, 2014 at the Big Cypress Seminole Indian Reservation.

The Florida League of Cities Conference will be held August 14-16, 2014 in Hollywood, Florida.  Jack McWilliams, and Jim Linn will be in attendance at the conference.  Click here for more information about the Florida League of Cities.

LLW is a proud sponsor of the Florida Airports Council Conference to be held August 3-6, 2014 in Jacksonville, Florida.  The Florida Airports Council is the largest airport-specific organization in Florida.  Click here for more information about the Florida Airports Council.

Jennifer Cowan will give a presentation titled “User Fees and Taxes” at the Florida Municipal Attorneys Association’s 33rd Annual Seminar July 24, 2014 at the Grand Hyatt in Bonita Springs, Florida.

The 2014 Florida Onsite Wastewater Association (FOWA) Conference will be held July 24-26, 2014 in Daytona Beach, Florida. Kevin Hennessy will give a presentation titled Out of the FOG (Fats, Oils and Grease) and Matt Taylor will give a presentation on the topic of Contractor Litigation. LLW is a proud sponsor of the event. The Florida Onsite Wastewater Association is an organized group of “those engaged in the manufacturing, installation, installation, repair or maintenance of onsite sewage treatment and disposal systems, plus firms that service and supply the industry.” Click here to read more about the Florida Onsite Wastewater Association.

LLW is a proud sponsor of the 28th Annual Environmental Permitting Summer School to be held July 23-25, 2014 in Marco Island, Florida.  The annual summer program is hosted by the Florida Chamber of Commerce.  LLW attorneys Terry Lewis, Brenna Durden, Kevin Hennessy, Tara Duhy, Steve Lewis, Alfred Malefatto, and Andy Baumann will speak at the conference.

LLW sponsored the Environmental & Land Use Law Section of the Florida Bar (ELULS) mixer held June 19, 2014 in Tallahassee, Florida.  ELULS holds monthly mixers to provide networking opportunities to section members, affiliates and their guests.  Click here for more information about ELULS.

Brenna Durden attended the Leadership Florida Annual Meeting held June 19-22, 2014 in Naples, Florida.  Created in 1982 by the Florida Chamber of Commerce, Leadership Florida builds a statewide community of leaders actively engaged in understanding and serving Florida.  Brenna Durden is a member of the Leadership Florida Class of 2012.  Click here for more information about the Leadership Florida Annual Meeting.

Terry Lewis, Bill Capko, Chris Lyon, Jennifer Cowan, and Jim Linn attended the 2014 Florida Association of Special Districts (FASD) Annual Conference held June 16-19, 2014 in Fort Myers, Florida. LLW was a sponsor of the conference. Click here to read more about the Florida Association of Special Districts.

Chris Lyon participated in the 26th Annual Big Bend Saltwater Classic held June 13-15, 2014. The Big Bend Saltwater Classic is a fishing tournament that was launched in 1989; the event is hosted by the Organization for Artificial Reefs, a marine interest group based in Tallahassee, Florida. All proceeds are used to expand and develop a system of artificial reefs in the Northeastern Gulf of Mexico. Click here for more information about the event.

The 2014 Urban Land Institute Florida Summit Conference was held June 12-13, 2014 in Orlando, Florida. The event included two power-packed days of expert speakers, expert panel discussions, highly interactive sessions, mobile tours, and networking events. Brenna Durden, Alfred Malefatto, Sean Alveshire, and Seth Behn were in attendance at the conference.  Click here for more information about the 2014 ULI Florida Summit.

Julia Jennison, Michelle Diffenderfer and Bob Diffenderfer attended the Palm Beach County Bar Association Installation Banquet held June 7, 2014 in Palm Beach, Florida.  The annual event is held to celebrate the new officers and directors of the Palm Beach Bear Bar Association.  Click here to read more about the Palm Beach County Bar Association.

Kevin Hennessy attended the Environmental Law Network (ELN) Conference June 5-6, 2014 in Chicago, Illinois.  ELN members maintain professional network connections through periodic conference calls, online communications and annual meetings. Click here for more information about ELN.

The annual American Bar Association section of Environment, Energy and Resources (ABA SEER) Water Law Conference was held June 4-6, 2014 in Las Vegas, Nevada.  Steve Walker participated in a panel discussion titledState-Federal-Tribal Interactions in Settlements. The ABA SEER Water Law Conference addresses the most important and timely issues for all types of practitioners in the water resources community. Click here for more information about the conference.

Jim Linn and Jack McWilliams spoke at the Florida Government Finance Officers Association (FGFOA) Conference which was held May 31, 2014 to June 3, 2014 in Orlando, Florida. Jim Linn gave a presentation titledPension Challenges Ahead – DB vs. DC and Jack McWilliams participated in a panel discussion titled Tax Exempt Bonds – An Endangered Species. The Florida Government Finance Officers Association was founded in 1937 and serves more than 2,800 professionals from state, county and city governments, school districts, colleges and universities, special districts and private firms. Click here for more information about FGFOA.

On May 29th, LLW co-hosted a golf invitational with BB&T at the Palm Beach Par3 Golf Course in Palm Beach, Florida. The inaugural networking event was a success with over twenty-five golfers hitting the tees. Winners of the tournament received a range of prizes including coolers, golf towels, golf shoe bags and golf umbrellas.

The Sunshine 811 Golf Tournament was held May 23, 2014 in Lake Mary, Florida. The mission of Sunshine 811 is to promote excavation safety and utility damage prevention by providing a dependable and efficient 811 communications center. Click here for more information about Sunshine 811.

LLW was a sponsor of the 40th Anniversary Equal Opportunity Day Awards Luncheon which was held on May 15, 2014 in West Palm Beach, Florida. The luncheon was co-hosted by the Urban League of Palm Beach County, an organization dedicated to assisting minorities in the achievement of social and economic equality. Alfred Malefatto serves on the Board of Directors for the Urban League of Palm Beach County. Click here for more information.

LLW was a proud sponsor of the Annual “Be Extraordinary” Senator Phillip D. Lewis Luncheon. The luncheon was held May 14, 2014 in West Palm Beach, Florida. Proceeds from the luncheon help provide immediate housing and meals, rental deposits, school supplies, job certifications and training for the homeless. The event was hosted by the Homeless Coalition of Palm Beach County, a nonprofit organization that “accomplishes its mission through activities associated with advocacy, education, community outreach and raising funds and resources to sustain the Ten-Year Plan to End Homelessness.” Click here for more information about the Homeless Coalition of Palm Beach County.

Glenn Thomas participated in the 37th Annual Local Government Law in Florida Conference held May 9-10, 2014 in Orlando, Florida. The annual conference is hosted by the City, County and Local Government Section of the Florida Bar. Click here for more information about the Annual Conference.

The Moments Luncheon & Silent Auction, hosted by Healthy Mothers, Healthy Babies Coalition of Palm Beach County was held May 9, 2014 in Palm Beach Gardens, Florida. This nonprofit organization is dedicated to providing education and access to care for uninsured and underinsured pregnant women and teens in Palm Beach County. Tara Duhy was co-chair of the event and LLW was a sponsor. Click here for more information about the organization.

Jennifer Cowan attended the Florida Bar’s City, County and Local Government Law Conference on May 8, 2014 in Orlando, Florida.