2017 Fall Newsletter

TABLE OF CONTENTS

  1. Frederick L. Aschauer, Jr. Joins Lewis, Longman & Walker, P.A.
  2. Corps Withdraws from Joint Environmental Resource Permit Application Process
  3. Judge Declares South Carolina Department of Health and Environmental Control Commits Take Through Modification of Sea Turtle Habitat
  4. LLW Receives “Band 1” Ranking in Environmental Law by Chambers and Partners
  5. LLW Attorneys Named 2018 Best Lawyers by U.S. News Media Group
  6. Notices of Note – October 5-11, 2017
  7. LLW Awards and Recognitions
  8. LLW Events and Presentations

 

Frederick L. Aschauer, Jr. Joins Lewis, Longman & Walker, P.A.

Frederick L. Aschauer, Jr. has joined the firm’s Tallahassee office as Of Counsel. Mr. Aschauer has extensive experience representing clients on matters related to litigation and environmental regulation.  Fred previously served as General Counsel for the Florida Department of Environmental Protection (FDEP), and prior to that as FDEP’s Director of the Division of Water Resource Management.

Mr. Aschauer has been involved in multiple cases before the Division of Administrative Hearings involving, among other things, environmental resource permits, consumptive use permits, and water quality standards. Mr. Aschauer has extensive experience litigating in various state courts throughout Florida. Fred’s practice also involves Federal matters governed by the Comprehensive Environmental Response, Compensation, and Liability Act “CERCLA,” the National Environmental Policy Act “NEPA,” the Freedom of Information Act “FOIA,” and the Clean Water Act “CWA.”   He has published articles and presented on topics such as water quality credit trading, litigation under the Federal Administrative Procedure Act, and numeric nutrient criteria issues. Mr. Aschauer graduated Cum Laude from the Florida State University College of Law.  He can be reached at faschauer@llw-law.com or at 850.222.5702.

 

Corps Withdraws from Joint Environmental Resource Permit Application Process

By: Robert P. Diffenderfer

Published September 1, 2017

Commencing October 1, 2017, the Army Corps of Engineers will no longer participate with the Florida Department of Environmental Protection, Water Management Districts, and delegated local programs’ in use of Joint Application Form 62-330.060(1) for Environmental Resource Permitting. Under the current process, submitting the Joint Application Form to the State agency automatically provides the application materials and associated documents and/or emails to the Army Corps of Engineers for review. Under the new process, if your project does not qualify for either Nationwide Permits or Regional General Permits, you must now submit Corps application ENG FORM 4345 along with the required attachments. If you are unsure whether or not a proposed project would be authorized under a Nationwide Permit or Regional General Permit, the Corps is highly recommending submittal of ENG FORM 4345 to expedite initial intake for processing your application. If you are confident that your application will be authorized under either the State Programmatic General Permit or one of the other available Programmatic General Permits, submit your application to the applicable administering entity and not with the Corps. The Corps welcomes and prefers electronic submittals, however it is worth noting that the Corps email acceptance is limited to 20MB and cannot accept *.zip files. If your application packet exceeds 20MB, the Corps recommends the U.S. Army’s Safe Access File Exchange (SAFE) found at https://safe.amrdec.army.mil/safe/.

For other information on the Army Corps review process, please refer to the Jacksonville District’s Source Book available at http://www.saj.usace.Army.mil/Missions/Regulatory/Source-Book/.

For assistance in navigating which permitting applications and forms may be required for your specific project, please contact Robert Diffenderfer of Lewis, Longman, & Walker at rdiffenderfer@llw-law.com or (561) 640-0820.

 

Judge Declares South Carolina Department of Health and Environmental Control Commits Take Through Modification of Sea Turtle Habitat

By: Rachael B. Santana and Frederick L. Aschauer, Jr.

Published August 17, 2017

Earlier this week, a federal district judge out of South Carolina issued a Preliminary Injunction mandating the immediate removal of certain structures because there had been a “take” under the Endangered Species Act for habitat modification which “significantly impairs” sea turtles’ ability to successfully nest.

The State of South Carolina, through budget proviso, authorized the construction of what the state called “wave dissipation devices.” The structures were constructed as a research project, which is critical under South Carolina law because new erosion control structures are prohibited. The structures were “vertical plastic pylons drilled into the sand and horizontal plastic bars stacked within the pylons,” which the court referred to as “seawalls.” If necessary the horizontal plastic bars could be removed to minimize potential impact to sea turtles.

The plaintiffs filed a lawsuit challenging the “sea walls as a violation of the Endangered Species Act.” As part of their case, the plaintiffs moved for a preliminary injunction, an extraordinary remedy that is rarely granted by the courts. In this case, however, the court granted this extraordinary remedy. Discussing the basis for its decision, the court focused on documented false crawls – when a sea turtle emerges from the water to lay her eggs but returns to the water without laying a nest – in the vicinity of the structures.

Despite the temporary nature of the structures as a research activity, and the flexibility to remove the horizontal plastic bars in front of any turtle’s nest, the Court required removal of the temporary structures during nesting season through the pendency of the underlying case. The Court noted that the Endangered Species Act has been called the statutory “pit bull of environmental laws” and the Congressional intent of the Endangered Species Act is to halt and reverse the trend of species extinction, “whatever the cost.”

For more information contact Rachael B. Santana at rsantana@llw-law.com or (561) 640-0820 or Frederick L. Aschauer, Jr. at faschauer@llw-law.com or (850) 222-5702.

 

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

LLW has been recognized by Chambers and Partners with a Band 1 ranking in environmental law.  LLW is one of only four law firms in Florida to receive this top-tier ranking. Results were recently published in the Chambers USA 2017 Guide. Rankings are based on interviews with law firms and clients. Additionally, four shareholders from LLW have been recognized as leaders in environmental law in the Guide: Terry E. Lewis, R. Steven Lewis, Stephen A. Walker 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.  To learn more, visit www.chambersandpartners.com/USA.

 

LLW Attorneys Named 2018 Best Lawyers by U.S. News Media Group

Terry E. Lewis and Stephen A. Walker Selected as 2018 Lawyers of the Year

Eight Lewis, Longman & Walker attorneys have recently been selected for inclusion in The Best Lawyers in America© 2018 by U.S. News Media Group and Best Lawyers®.  Additionally, Terry E. Lewis and Stephen A. Walker have been named 2018 Lawyers of the Year.  Below is the comprehensive list:

  • Terry E. Lewis – 2018 Lawyer of the Year, Environmental Litigation (West Palm Beach) 2018 Best Lawyer in the areas of Environmental Law and Environmental Litigation
  • Stephen A. Walker2018 Lawyer of the Year, Environmental Law (West Palm Beach) 2018 Best Lawyer in the areas of Environmental Law and Environmental Litigation
  • Wayne E. Flowers Water Law, Environmental Litigation and Environmental Law 
  • Anne Longman – Environmental Law and Environmental Litigation
  • Alfred J. Malefatto – Environmental Law
  • R. Steven Lewis – Environmental Law and Environmental Litigation
  • James W. Linn – Employee Benefits (ERISA) Law and Employment Law – Management
  • Brenna M. Durden – Real Estate Law, Real Estate Litigation and Land Use and Zoning Law

Best Lawyers® is the oldest and most respected peer-review publication in the legal profession.   The 2018 edition of The Best Lawyers in America© includes 54,488 lawyers covering all 50 states and the District of Columbia and is based on more than 5.5 million detailed evaluations of lawyers by other lawyers. Best Lawyers® lists are excerpted in a wide range of general interest, business and legal publications worldwide, reaching an audience of more than 17 million readers. For more information on “Best Lawyers” rankings, visit http://www.bestlawyers.com/default.aspx.

 

Notices of Note – October 5-11, 2017

The Florida Department of Environmental Protection is hosting a post-Hurricane Irma outreach meeting to provide information to the affected public regarding Coastal Construction Control Line permitting and repair/recovery activities authorized under applicable Emergency Final Orders, beach and dune repair, and beach restoration funding. Folks with coastal properties in northeast Florida may have an interest in attending this meeting.

DEPARTMENT OF ENVIRONMENTAL PROTECTION

  • Notice of Meeting/Workshop Hearing
    Subject: This post-Hurricane Irma outreach meeting will be held to provide affected citizens and property owners in St. Johns County information on Coastal Construction Control Line permitting (including permits for coastal armoring), repair/recovery activities authorized under applicable Department Emergency Final Orders, beach and dune repair, and beach restoration funding.
    Date/Time: October 18, 2017, from 5:30 to no later than 7:00 p.m.
    Location: Ponte Vedra Branch Library, 101 Library Blvd., Ponte Vedra Beach, FL
    If you would like to read the published notice, click here.

Florida Department of Environmental Protection (FDEP) has initiated rule development to make revisions to the regulations involving hazardous wastes, used oil management, and management/disposal of mercury containing devices. FDEP will also host a meeting to discuss topics related to contaminated site cleanup criteria. FDEP has also released and is seeking public comment on the 2018-2022 Florida Greenways and Trails Systems Plan. The St. Johns River Water Management District has noticed a meeting of the Central Florida Water Initiative steering committee. Finally, the Department of Agriculture and Consumer Services has initiated rulemaking on various agriculture-related subjects, notably beekeeping and citrus nursery root stock.

DEPARTMENT OF ENVIRONMENTAL PROTECTION

  • Notice of Development of Rulemaking
    Affected Administrative Code Chapter: 62-730 Hazardous Waste

Purpose: The purpose and effect of this rule development will be to amend rules identified in the Department’s 2016-2017 Regulatory Plan as needing to be amended to increase efficiency and internal consistency by adopting federal regulations by reference, making other conforming changes, and updating forms. If you would like to read the published notice, click here.

  • Notice of Development of Rulemaking
    Affected Administrative Code Chapter: 62-710 Used Oil Management

Purpose: The purpose and effect of this rule development will be to amend rules that need to be amended to increase efficiency and internal consistency by adopting federal regulations by reference, and updating forms. If you would like to read the published notice, click here.

  • Notice of Development of Rulemaking
    Affected Administrative Code Chapter: 62-737 Management of Spent Mercury-Containing Lamps and Devices Destined for Recycling

Purpose: The purpose and effect of this rule development will be to amend rules that need to be amended to increase efficiency and internal consistency by adopting the revised notification form and updating the labeling requirements for spent universal waste lamps and devices. If you would like to read the published notice, click here.

  • Notice of Meeting/Workshop Hearing
    Subject: This will be a general meeting of the Contaminated Media Forum to discuss topics with the implementation of Chapter 62-780, Contaminated Site Cleanup Criteria. Please submit any suggested agenda topics to Dougherty@dep.state.fl.us by October 16, 2017.
    Date/Time: Tuesday, October 24, 2017 from 9:00 a.m. until no later than 4:00 p.m.
    Location: Room WD 123, Building WD#38, Tallahassee Community College, 444 Appleyard Dr., Tallahassee Meeting will also be available by webinar and teleconference: 1(888)670-3525, participant code 164-302-8932. If you would like to read the published notice, click here.
  • Notice of Meeting/Workshop Hearing
    Subject: The Office of Greenways and Trails is seeking comments from the public regarding the draft 2018-2022 Florida Greenways and Trails System Plan and updates to the Opportunity and Priority Maps for Florida’s network of non-motorized land-based and water-based trails. Interested persons may drop in at any time during these open houses to learn more about the update and to provide comments. Materials will be available at each open house location and will be available online. For more information on how to obtain the meeting materials contact Samantha Browne, Chief, Office of Greenways and Trails, Division of Recreation and Parks, Department of Environmental Protection, 3800 Commonwealth Blvd., MS 795, Tallahassee, Florida 32399-3000. Ms. Browne may also be reached by telephone: (850)245-2052 or at Browne@dep.state.fl.us. If you would like to read the published notice, click here.

ST. JOHNS RIVER WATER MANAGEMENT DISTRICT

  • Notice of Meeting/Workshop Hearing
    Subject: The CFWI Steering Committee is a collaborative effort among government agencies formed to address water resource issues in the area known as the Central Florida Water Initiative. The CFWI Steering Committee will consider matters appearing on the agenda for the meeting or matters added to the agenda as determined by the Chair of the Committee. Additional information about this effort may be found at http://cfwiwater.com. NOTE: One or more additional Governing Board members from each of the three districts named above may attend and participate in the meeting of the CFWI Steering committee.
    Date/Time: Friday, October 27, 2017, 9:30 a.m.
    Location: Haines City Commission Chambers, 620 E. Main Street, Haines City, FL 33844. If you would like to read the published notice, click here.

FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

  • Notice of Development of Rulemaking
    Affected Administrative Code Chapter: 5B-54 Pests of Honeybees and Unwanted Races of Honey Bees
    Purpose: This proposed rule is being developed because the Honey Bee Technical Council met and provided feedback to the department wherein Florida’s beekeepers are requesting clarification to portions of the department’s regulatory authority. If you would like to read the published notice, click here.
  • Notice of Development of Rulemaking
    Affected Administrative Code Chapter: 5B-62 Citrus Nursery Stock Certification Program
    Purpose: The proposed rule clarifies existing regulatory requirements regarding citrus nursery stock, updates referenced material, incorporates new regulatory requirements for rootstock cuttings, clarifies regulatory requirements regarding how hot water treatments must be performed for citrus seeds and rootstocks/cuttings. If you would like to read the published notice, click here.

For more information, contact LLW attorney Chris Johns at 561-640-0820 or by emailing cjohns@llw-law.com.

 

LLW Awards and Recognitions

Tara Duhy recently joined the Mounts Botanical Garden Foundation Board of Directors.

Michelle Diffenderfer was selected for the 2017-2018 Leadership Florida Gulfstream Regional Council. Michelle is a member of the 33rd Class of Leadership Florida and is a member of Leadership Palm Beach County Class of 2000. Michelle was elected to the Council during the Leadership Florida Annual Meeting in July.

Rachael Santana was selected for the 2017-2018 Class of the Florida Natural Resources Leadership Institute.

Al Malefatto has been selected for inclusion in the Who’s Who Legal: Environment 2017 Guide.  Who’s Who Legal is an annual publication recognizing lawyers nominated by clients and peers.

John Wallace was selected to join the 2018 Class of Leadership Jacksonville.  Leadership Jacksonville is a year-long program that brings together leaders throughout the community to learn more about their community, to build relationships with other leaders and to better serve as a community trustee.  LLW Shareholder Brenna Durden is graduate of the 1998 Class of Leadership Jacksonville.

John Wallace has been named a Florida Legal Elite Up & Comer in the area of Environmental & Land Use law in the 2017 Legal Elite list compiled by Florida Trend magazine.  The Legal Elite Up & Comers category is a special designation for attorneys under the age of 40 who have exhibited leadership in law and in their community.

Richard Green has been chosen by The Board of Governors of Leadership Manatee to participate in the 2017-2018 Leadership Manatee class. The program of the Manatee Chamber Foundation is designed to expose business and community leaders to the opportunities and challenges facing Manatee County while honing their leadership skills to make a difference in the community.

Rachael Santana has been awarded the Stephens/Register Memorial Award for Outstanding Service by the Environmental and Land Use Law Section of The Florida Bar.  Rachael Santana accepted the award at the 2017 Annual Florida Bar Convention and is the only recipient to win this award two consecutive years. The Award is given by the chair of the Environmental and Land Use Law Section to a member of the Executive Council who has provided outstanding leadership and vision for the section.

LLW shareholder Julia L. Jennison was presented with the Environmental Tree Award for Outstanding Love, Dedication and Commitment to Environmental Education at the 17th Annual Nicholas Megrath Scholarship Dinner and Awards Program in May in West Palm Beach.  The annual event is hosted by the Friends of the Gale Academy, a nonprofit organization that is dedicated to supporting the Academy through funding for field trips, equipment, providing mentors and speakers, science-fair judges, and scholarships.  Since 2002, the Friends of the Gale Academy has given away more than $120,000 in scholarships.  Julia serves as President of the Academy.

 

LLW Events and Presentations

LLW is sponsoring the Coastal Conservation Association North Palm Beach 32rd Annual Banquet & Auction on November 9th in Palm Beach Gardens.

LLW is sponsoring the Florida EHS Roundtable November 1st in West Palm Beach.

LLW is a proud sponsor of The Caribbean-American for Community Involvement’s Annual Friendship Ball on October 28th in West Palm Beach.

Kathryn Rossmell will give a presentation titled “Drones/Unmanned Aeronautical Systems – Legal and Industry Applications Update” at the Florida Airports Specialty Conference October 25-27th in Orlando.

LLW is sponsoring the ATHENA Awards Luncheon on October 25th in West Palm Beach.

LLW is sponsoring the Florida Section Air & Waste Management Association 53rd Annual Conference & Exhibition October 25-26th in Tallahassee.

Glenn Thomas will present a Florida Retirement System and Pension Update at the Florida Bar Annual Public Employment Labor Relations Forum on October 20th in Orlando.

Al Malefatto will give a presentation on Institutional Controls at the Florida Association of Environmental Professionals October 18-20th in Tallahassee.

LLW is sponsoring the Florida Redevelopment Association Annual Conference October 18-20th in Daytona Beach.

Bill Capko and Jack McWilliams attended the National Association of Bond Attorneys Workshop October 4th in Chicago.

LLW sponsored the Florida Beach and Shore Preservation Association Conference September 27-29th in Fort Lauderdale.

Chris Johns attended the Florida Fruit and Vegetable Association September 25-27th in Amelia Island.

LLW attorneys participated in the Florida Chamber’s 31st Annual Environmental Permitting Summer School July 18-21st in Fort Lauderdale.  LLW is proud to be a long-time supporter of the event and also hosted its annual networking event on-site.

Seth Behn presented “Legal Problems – GIS Solutions” July 13th at the Esri User Conference in San Diego.

LLW sponsored the 29th Annual Big Bend Saltwater Classic June 16-17th at the Shields Marina in St. Marks.  Proceeds from the event support the Organization for Artificial Reefs, Inc., (OAR), a private, non-profit, marine interest group based in Tallahassee.

LLW held a charity event on June 15th at Hell n’ Blazes Brewing Company to support Florida Hospital’s Pediatric Bone Marrow Transplant Program.  The charity event was attended by local business leaders from the Melbourne community, including individuals from NASA, Orlando-Melbourne International Airport, the Viera Company and ENSCO. Florida Hospital is one of the country’s largest not-for-profit health care providers with 22 campuses serving communities throughout Florida.  In 2012, Florida Hospital opened the first and only dedicated pediatric bone marrow transplant (BMT) unit in Central Florida. For more information, visit https://www.floridahospital.com/.

Wayne Flowers presented “Conservation Easements and Mitigation Banking” June 7th as a part of The Florida Bar’s Environmental Land Use Law Section webcast series.

Kathryn Rossmell presented “Drones – Hovering over a Town Near You” June 1st at the FCCMA Annual Conference in Orlando.