Volume 13, Issue 4

In This Issue:

• Bradenton Celebrates New Office with an Open House Reception

• Maggie Mooney-Portale Awarded “AV Preeminent” Rating

• Howard Caplan Selected for Leadership St. Johns Class of 2013

• Moving From Adoption to Implementation of Numeric Nutrient Criteria

• A Primer on Storm Water Management at Multi-Tenant Facilities

• Appeals Court Rules That Third Parties Have No Right to Intervene in a Pending Enforcement Action

• Secondary and Cumlative Impacts Analysis and the Endangered Species Act

• Protecting Ideas With Confidentiality Agreements

• Back to School Supplies – for Teachers

• FIRM NEWS

 

Bradenton Celebrates New Office with an Open House Reception

The Bradenton office of Lewis, Longman & Walker, P.A., has a new waterfront view. LLW hosted an open house reception on October 3, 2012, to celebrate their relocation to 101 Riverfront Boulevard in Bradenton, Florida. Over 80 people attended the event, which was catered by Simply Gourmet, and representatives from the Manatee Chamber of Commerce attended for the ribbon-cutting ceremony.

The firm moved from their office at the Sun Trust Building on June 19, 2012.  “We are thrilled to relocate to such a premiere location and to be able to continue to serve our many clients.” said Kevin S. Hennessey, Shareholder and Firm Executive Committee member of the Bradenton office.

The Bradenton office has been serving the community for over eight years. The firm continues to grow and help the individuals, businesses and governments in the Tampa Bay area.
The attorneys at Lewis, Longman & Walker, P.A. offer solutions to issues associated with complex local, state, and federal laws and regulations. We focus on the specific, technical and seemingly ever-changing areas of Environmental, Land Use and Governmental Law. The Lewis, Longman & Walker team is comprised of well-known and respected attorneys with the experience and skill to quickly resolve difficult legal challenges. We are committed to responding to clients’ needs promptly and economically and believe in building long-term attorney-client relationships based upon collaboration and solid performance.

Howard Caplan Selected for Leadership St. Johns Class of 2013

He is not often referenced, but Harold R. McAlindon—author of the Little Book of Big Ideas, once said the best leaders “do not follow where the path may lead. They go instead where there is no path and leave a trail.”

Howard Caplan of Lewis, Longman & Walker, P.A., clearly lives by those words—Mr. Caplan was recently selected for Leadership St. Johns Class of 2013.

“It is an honor to be selected to this year’s class; I look forward to the opportunity to give back to my community while further developing my leadership abilities.” said Caplan, “At Lewis, Longman & Walker, we see and do things differently. This mind set is part of the firm culture, which results in a great team of leaders.”

Caplan is a transnational attorney at LLW; his practice focuses on commercial and corporate law, franchise, intellectual property, real estate, business and technology. Prior to joining the firm, he was the President of various corporations, with experience ranging from real estate development and management to restaurants and retail. Because of his hands-on experience with business, he understands business owners’ hopes and fears, frustrations and successes.

In addition to being a member of the International Trademark Association, Caplan is a member of the American Bar Association Forum on Franchising, the Florida Bar and the Jacksonville Bar Association, where he serves as the vice-chair of the Franchise, Intellectual Property and Technology Law Committee.

Lewis, Longman & Walker recognizes Caplan’s leadership skills, and was not surprised that those skills stood out to the St. Johns County Chamber of Commerce. The chamber founded Leadership St. Johns in 1999.  The program has had over 100 graduating members over the last thirteen years. Each year, St. Johns County’s finest leaders are selected to participate in the 12 month program.  Through education and networking, Leadership St. Johns further develops the skills of participants, so that they can become catalysts for change in the community.

Caplan will continue to develop his leadership skills as he joins twenty others in this year’s Leadership St. Johns class.  Leadership St. Johns is a program made up of a diverse group of community leaders from throughout St. Johns County, who are business, government, education and community leaders.

Mr. Caplan can be reached at (904) 353-6410 or at hcaplan@llw-law.com.  For more information, please visit our website at www.llw-law.com.

 

Moving From Adoption to Implementation of Numeric Nutrient Criteria

by Wayne Flowers & James Charles

The overall purpose of the Clean Water Act (CWA) is “to restore and maintain the chemical, physical and biological integrity of the Nation’s Waters.”  [33 U.S.C. § 1251(a)].  This lofty goal is accomplished, in part, through the setting of water quality standards designed to protect the designated uses for jurisdictional water bodies.  The CWA allows states to establish water quality standards as narrative or quantitative thresholds.  Because the development of quantitative standards is scientifically complex, particularly in the case of nutrients, most states, if not all, have utilized narrative water quality standards.  Our January 2012 AWWA article entitled “Numeric Nutrient Criteria for Surface Waters: Coming to a Neighborhood Near You,” describes the somewhat chaotic experience in Florida associated with development of numeric nutrient criteria (NNC) for that state’s waters to replace its narrative standard, which will be updated in the near future.

The United States Environmental Protection Agency (EPA) has determined that narrative water quality standards for nutrients have not sufficiently protected the Nation’s waters from impairment.  Impairment occurs when pollution in the water body reaches the point that the water body does not meet its designated use(s) (e.g., fishing, swimming, etc.).  Since 1996, EPA has encouraged all states to develop NNC for jurisdictional waters.  EPA believes that nutrient pollution is a leading cause of impairment, and development of NNC is the key to identifying impaired waters, protecting and permitting those waters, and establishing load reduction measures for those waters, such as Total Maximum Daily Loads (TMDLs).

Although EPA encouraged development of NNC since 1996, EPA never required the development of general NNC until recently in the State of Florida.  In July 2008, several environmental groups sued EPA to force the accelerated development of NNC for all Florida waters. (Florida Wildlife Federations v. Jackson, N.D. Fla. Case No. 04:08-cv-324-RH-WCS).  Prior to the filing of the lawsuit, the State of Florida committed to developing NNC for all surface waters, however, the Plaintiffs in the lawsuit contended that the development was talking too long.  As a consequence of the lawsuit, EPA informed the State of Florida that the state’s narrative standards for nutrients did not sufficiently protect water quality and that the NNC must be developed for nitrogen and phosphorus.  EPA later settled the lawsuit by agreeing to mandate adoption of NNC within the State of Florida.

After a chaotic rule development process, EPA promulgated NNC for lakes, springs, and flowing waters, excluding South Florida, on November 14, 2010.  EPA’s settlement agreement still requires EPA to have NNC developed for marine waters and South Florida waters.  Despite being promulgated almost two years ago, EPA’s NNC have not yet been implemented due to lawsuits that followed publication of the rule and the State of Florida’s development of NNC.  In June 2012, the State of Florida’s rule was upheld by an administrative law judge and the State has formally requested EPA to approve their rule and rescind EPA’s NNC rule.

Since EPA settled its lawsuit by compelling adoption of NNC in Florida, environmental groups across the country have petitioned EPA to establish NNC in other respective states.  Notable among the current lawsuits is one seeking to force EPA to establish NNC for the entire Mississippi River Basin.  (Gulf Restoration Network v. Jackson, E.D. LA. Case No. 2:12-cv-00677).  As we noted in our previous article, NNC will likely become an issue for every state.  With this in mind, the key concerns for local governments are: how to manage nutrient loading; how to prepare for NNC; and how to implement NNC so as to avoid some of the pitfalls experienced in Florida.

Managing Nutrient Loading and Preparing for NNC                    

For local governments in states not yet under pressure to establish NNC, particularly given current economic conditions, the easy choice would be to put off taking steps toward addressing this issue.  Prudent local governments, however, will start assessing nutrient pollution and water quality protection programs now rather than waiting until that pressure arrives.  Getting ahead of the curve would put local governments in a better position to avoid the need for NNC or at least to be able to manage nutrient pollution in a manner that prevents any adverse impacts to governmental operations.

As a first step, local governments should assess baseline conditions of the surface waters within their jurisdiction especially surface waters that receive discharges from government facilities.  This requires assessing the local government’s facilities, discharges, and all potential loading sources entering the water body.  Knowledge concerning baseline conditions is critical. Knowledge of baseline nutrient conditions allows local governments to gauge how much room exists for growth before reaching water body impairment or alternatively, the size of the loading reduction required if the water body has reached impairment.  Local governments can then frame existing or potential problems and develop response strategies.  For example, if non-point sources are the primary source for nutrients in a receiving water that a local government also discharges into, then it would be prudent to manage non-point sources (such as agriculture) in order to give the local government more flexibility with regard to its operations affecting the water body.  This could potentially be accomplished through implementing best management practices that do not limit the non-point source’s productivity but appropriately manages discharges from those sources.

It is also important for local governments to assess their current National Pollution Discharge Elimination System (NPDES) permits.  NPDES permits are required under the CWA for point sources such as Municipal Separate Storm Sewer Systems (MS-4) and water treatment plants.  The NPDES program requires compliance with water quality standards, which results in discharge limitations as a permit condition.  The NPDES program is the principal mechanism for regulating point sources under the CWA.  In connection with these permits, local governments should assess anticipated expansions of existing facilities and construction of new facilities against the loading capacity of the receiving water bodies.  NNC not only sets quantitative limits on a given pollutant but can also represent a limit on community growth.  Assessing current permitted discharge limitations against prospective discharge needs will give localities the necessary information to plan accordingly and facilitate the necessary growth of their operations with minimum obstacles.

It is important for local governments to evaluate their legal and policy frameworks as each relates to nutrient pollution.  This includes evaluating land use planning documents such as comprehensive plans ensuring systematic, long term controls to address nutrient pollutions.  Land use planning can be an effective tool to affect future nutrient loading for new development and retroactively on redevelopment projects.  Local governments should also assess local codes and regulatory programs to ensure sufficient regulation of both point and non-point nutrient loading sources.  Many states and localities do not regulate non-point sources of nutrient pollution and instead rely on voluntary programs.  Developing the necessary framework for local governments to initiate programs that manage nutrient pollution from both point and non-point sources can position local governments to have more control over their resources and operations.  Legislative action may include codification of best management practices and low impact development principles in land development regulations and ordinances.  Localities may also want to assess the need for special purpose governments as a mechanism for managing nutrient pollution on a basin-by-basin basis.  Pollution trading programs can also allow for future growth and entrepreneurial opportunities to control nutrient pollution.

Implementing NNC

EPA has suggested that an important element behind requiring NNC is to accelerate the identification of impaired waters by states.  If a water body is categorized as impaired, then the respective state must take action to reduce the loading of the pollutant(s) causing the impairment.  The reduction of loading is accomplished by the establishment of Total Maximum Daily Loads (TMDL) pursuant to Section 303(d) of the CWA.  The TMDL is intended to set a reduction target.  How that reduction target is met requires the state to decide who specifically will be required to reduce discharges of the pollutant and in what amount.

A TMDL “is a calculation of the maximum quantity of a given pollutant that may be added to a water body from all sources (point or non-point) without exceeding the applicable water quality standard for that pollutant.”  [The Clean Water Act Handbook, p. 205, Ryan, Mark A, A.B.A. 2003].  TMDLs are numeric reduction targets intended to bring the impaired water body back into compliance with the respective water quality standards.  In many instances non-point sources are the main contributors to nutrient loading.  For that reason, the TMDL process is a logical implementation tool as it includes both point and non-point sources whereas the NPDES program addresses only point sources.

The CWA mandates the development of TMDLs for impaired water bodies; however, it does not define a process for implementation of TMDLs.  Setting a numeric nutrient target is not the end of the process because the target TMDL load allowance must be allocated to each source to ensure the total discharges to the water body will not exceed the TMDL.  To effectively deal with nutrient pollution, it would be prudent for states to have a defined TMDL implementation process and for local governments to prepare for TMDLs.

TMDL implementation varies greatly state to state.  While a few states require or recommend that implementation plans be developed for each TMDL, Florida likely has the most comprehensive TMDL implementation program in the nation.  The Florida process has a three step approach that ensures participation from interested stakeholders during each step.  Florida has promulgated a formal listing process for identification of impaired waters.  [Chapter 62-303 Fla. Admin. Code].  If a water body is confirmed to be impaired for one or more pollutant, the water body is placed on the State’s verified list of impaired waters.    The State’s list of impaired waters is submitted to EPA for approval on a biannual basis.  After impairment is declared, the water body or an appropriate segment thereof is scheduled for TMDL development.  TMDLs are developed and adopted through a rulemaking process prescribed by Florida’s Administrative Procedures Act [Fla. Stat. Chapter 120].

TMDLs developed by the states are submitted to EPA for approval.  After EPA approves a TMDL target for a water body, the State initiates development of a Basin Management Action Plan (BMAP).  The BMAP process brings together all stakeholders (sources of pollutants causing impairment) to assign specific load reductions/allocations to each discharger (i.e., industry, agriculture, and municipal facilities).  The BMAP process is intended to facilitate a cooperative planning process for all affected dischargers.  It is this step that distinguishes Florida from most, if not all, other states.  The process is intended not only seek input from stakeholders, but also conclude with a BMAP in which the stakeholders are vested.

As noted earlier, EPA sees TMDLs as the primary tool for managing nutrient impaired waters regardless of the existence of NNC.  However, EPA has left implementation of the TMDL process to the states to figure out.  It is recommended that other states develop or refine their TMDL process in order to ensure cost-effective and successful implantation of TMDLs.  As EPA noted during the Florida experience, the focus nutrient pollution is being given will likely result in more TMDLs being required to address nutrient loading.  Therefore, it is prudent to have a defined TMDL process in place to avoid non-compliance issues and enforcement actions.

While a defined TMDL implementation process is recommended, such a process should not supersede proactive assessment and response to nutrient pollution issues.  Localities that assess baseline conditions, future needs, and their respective legal framework and policies can avoid the need for TMDLs and NNC by proactively planning for these issues.  As the Florida experience demonstrates, the TMDL process takes years to complete and requires the significant expenditure of time and resources.  We all know that it is better to prevent impairment than it is to try to repair the damage once it occurs.  These recommendations can provide the necessary prevention to avoid the TMDL process and afford localities and states more control over their natural resources and operations in a cost-effective manner.

In summary, when local governments and the states that host them plan effectively to deal with nutrient pollution, the solutions they select will empower them to be in control of their futures.  It also greatly reduces, and hopefully eliminates, the uncertainly that naturally results when affected parties are forced, especially in the context of litigation, to take action to address nutrient pollution.  Further, effective planning promotes economy and efficiency in addressing these issues.

Mr. Charles represents private and public sector clients before local, state, and federal agencies and courts on wetland permitting, environmental resource, stormwater permitting, endangered/protected species, sovereign submerged lands authorizations, navigation, and professional licensing. He can be reached at (561) 640-0820 or at jcharles@llw-law.com.

Mr. Flowers represents public and private sector clients in the areas of environmental, land use and governmental law.  Mr. Flowers’ clients include private land owners and developers as well as entities of government.  He represents these clients before local, state and federal agencies and courts on wetland permitting matters, storm water permitting matters, sovereign submerged lands authorizations, water supply permits and issues, Endangered Species Act issues, and Clean Water Act permits and issues. He can be reached at (904) 353-6410 or at wflowers@llw-law.com.

If you have any questions about the NNC process that we outlined in this article, please don’t hesitate to contact us.

 

A Primer on Storm Water Management at Multi-Tenant Facilities

by John L. Fiveash

EFFECTIVE STORM WATER MANAGEMENT has always been a technically challenging task, but when you add the complexities and legalities of managing storm water at a multi-tenant facility, it requires a great program, finesse and patience to protect water quality and avoid legal and financial mishaps. Multi-tenant sites, such as ports, airports, landfills, commerce parks, mall developments and medical parks, add layers of issues not dealt with at single-use facilities. Many key issues revolve around how to effectively manage storm water while maintaining a positive relationship with tenants. Dealing with those issues requires more than just a storm water permit plan; it requires the development of a well-executed management program.

In developing a storm water management program, the focus has to be on the design, implementation and long-term monitoring of the storm water plan, along with best management practices (BMPs) that balance facility goals and budgets, permit requirements, tenant relations and facility neighbors. One of management’s goals for the program should include the minimization of the everyday environmental and financial risk exposure the facility faces from regulators and third-party environmental plaintiffs.  A fundamental element in reducing risk is designing a program around whether the facility will be the sole storm water permit holder for the entire facility (including tenant operations), whether the facility will require each tenant to apply for its own storm water permits, or whether some form of hybrid system will be allowed (e.g., some tenants have their own permits, while others rely on the facility’s permit).

Every facility is different in terms of location, management and history. However, there are two inescapable factors that are common to most all multi-tenant facilities. The first is that the facility owns the real property that the tenants occupy. The second is that the facility owns and is responsible for maintenance of the infrastructure that collects and transports the storm water. Both factors are notable because, even though a facility may require tenants to permit, plan and sample their own storm water flows, it is nearly impossible for a facility to shift and escape all Clean Water Act (CWA) responsibility for a tenant’s operations. The reality is that the U.S. EPA, through the CWA, demands legal accountability and a sound management plan. So, to identify a facility’s risk exposure, and then allocate and minimize it, experience dictates a comprehensive program and system should be developed and implemented in three phases.

Phase One: Understanding the facility’s goals and gathering the information.

The focus of Phase One is analyzing the current storm water management structure at the facility and understanding facility management’s future goals. During Phase One, most of the following tasks should be accomplished:

• Review the existing Storm Water Pollution Prevention Plan (SWPPP), training records, inspection records and sampling information.
• Review past enforcement actions and resulting settlements or restrictions affecting the facility.
• Collect and review tenant operation information if the SWPPP does not contain sufficient detail.
• Gather information about the technical capabilities of the tenants to determine whether they have the desire or resources to take on permit tasks.
• Collect and review existing depictions of the facility and the storm water system.
• Collect and review existing local, state and federal notice of intent filings and permits related to storm water at the facility.
• Meet with facility management to understand and discuss their goals and objectives.
• Tour the facility and locate basins, outfalls and retention/detention facilities.

Phase Two: Identifying the problems, communicating goals, fixing things, and formulating the plan.

Inland multi-tenant facilities can develop a relatively static SWPPP, implement it, and survive most regulatory scrutiny. Facilities that discharge storm water to jurisdictional wetlands or navigable water bodies do not have that luxury. The focus of Phase Two is to begin communicating to the tenants changes in the manner in which the facility will be managing permitting (e.g., shifting from a hybrid form of management to all tenants being responsible for their own permitting and sampling). During Phase Two, most of the following tasks should be accomplished:

• Depictions of the storm water system/infrastructure should be brought up to date and overlaid with tenant locations. Areas of potential illicit discharges should be confirmed and depicted along with areas where prior spills have occurred. Current and future construction areas that may influence storm water should be identified.
• An analysis of third-party usage of the facility’s storm water infrastructure should be developed. These might include outparcels previously sold by the facility and adjoining property owners that may be utilizing the facility’s system. Part of that analysis should include an assessment of the third-party parcel owner’s legal right to use the facility’s system.
• If not already completed, the process of matching the inlets to the outfalls and retention/detention facilities should begin.
• The process of cross-referencing the outfalls and retention/detention facilities to the individual tenants should begin.
• Appropriate sampling locations should be identified (for the facility owner and tenant locations) and crossed checked with tenant records.
• The facility’s Spill Prevention, Control and Countermeasure plan (SPCC), Facility Response Plan (FRP) and Integrated Contingency Plan (ICP), if required, should be obtained and reviewed.
• The facility’s SWPPP and BMPs should be updated or redrafted as necessary.
• If the facility is a port, storm water related tariffs should be updated or drafted.
• SWPPP training for the facility staff and tenants should be updated/conducted. Open training sessions hosted by the facility are a great way to communicate permit and program changes to tenants.

Phase Three: Bringing the program together and making it last.

For any management plan to succeed, it has to be understandable, communicated to the right parties, and must contain some form of continuing oversight for reinforcement. EPA requires a SWPPP to be “implemented,” and that it be considered a “living document.” The focus of Phase Three is establishing the maintenance and oversight aspects of the program. During Phase Three, most of the following tasks should be accomplished:

• Ensure there are adequate BMPs and either easement or license agreements in place with adjacent property owners and outparcel owners that utilize the facility’s storm water system.
• Develop and price revenue models for third-party (non-tenant) utilization of the system.
• Communicate the SWPPP and BMPs to the tenants and operators.
• Depict and maintain all sample locations (for the facility owner and tenant locations) so as to document representative sampling.
• Calendar permit and event dates and reminders.
• Develop proper sample training and inspection schedules, assign responsibilities, and create a follow-up policy.
• Develop a storm water inspection policy for construction activities.
• Develop a comprehensive storm water infrastructure inventory and aging study.
• Research and develop funding for improvements and new system construction.

Long-term considerations.

Every multi-tenant facility owner faces the concern of how to pay for storm water infrastructure operations, treatment, maintenance and future construction. It is difficult, if not impossible, to create a viable storm water infrastructure plan without first understanding who is using the different parts of the system, the nature and extent of offsite storm water flows taxing the facility’s system, and how best to parcel out responsibility for use of the system. Owners should work to establish a plan for funding in-house and outsourced costs for compliance, maintenance and improvements to its storm water system. Funding of those costs should come from non-tenant property owners who utilize the facility’s system, as well as from other sources like existing lease revenues and grant funding. The development of a comprehensive storm water management program is a critical first step in determining how best to pay for aging infrastructure.

For more information, please contact John L. Fiveash at jfiveash@llw-law.com. Mr. Fiveash is Chair of the Lewis, Longman & Walker’s Water Resources Group and Water Utilities Industry Group, and represents private and governmental clients in water resources and storm water issues, Clean Water Act enforcement actions and litigation, and has significant experience representing clients in criminal Clean Water Act investigations and at trial. Mr. Fiveash is also Managing Director of WSource Group LLC, which provides consulting and storm water management services to corporations and public facilities nationwide. For more information, visit our website atwww.wsourcegroup.com.

 

Appeals Court Rules That Third Parties Have No Right to Intervene in a Pending Enforcement Action

On September 19, 2012, the Third District Court of Appeal ruled that interested third parties have no legal right to participate in an enforcement action brought by the State of Florida against an individual for violations of environmental statutes.  In Morgan v. Department of Environmental Protection and Jeffery M. Adeeb, Lewis, Longman and Walker represents a property owner who is the subject of an enforcement action brought by the Department of Environmental Protection for alleged violations of permit conditions relating to the construction of a single-family dock in the Florida Keys.  A neighboring property owner attempted to intervene in the Department’s enforcement proceeding being prosecuted in the Division of Administrative Hearings.  The Administrative Law Judge denied the neighbor’s right to essentially intervene and act as co-prosecutor along with the Department in the matter.  The Third District Court of Appeal agreed.  The ruling firmly establishes that an enforcement prosecution is a proceeding between the Department and the party subject to enforcement, and interested third parties may not participate in the case.

In a related case, the District Court also held that a third party may not maintain a Petition for Enforcement under Section 120.69 of the Administrative Procedures Act if the agency has commenced and is diligently prosecuting its own enforcement action.

Please contact Andrew Baumann, Chair of the Litigation Practice Group if you’d like to obtain a copy of the opinion or if you have any questions.  The Court held that “diligence” does not require “far reaching or zealous” prosecution.  Even where the agency has agreed to an abeyance of the enforcement proceeding, the District Court held that courts should not second guess the agency’s assessment of the appropriate remedy or prosecutorial strategy.

 

Secondary and Cumulative Impacts Analysis and the Endangered Species Act

by Robert Diffenderfer & Michelle Diffenderfer

In the July 2012 issue of this publication, the reach of the secondary and cumulative impacts analyses under the Clean Water Act (CWA) were discussed and contrasted with their treatment under the National Environmental Policy Act (NEPA).  This article will address the same secondary and cumulative impacts analyses under the Endangered Species Act (ESA). It also highlights important principles under the statutes most commonly encountered (ESA, NEPA, CWA) in the federal program of natural resource protection.

Purpose of Impact Analysis

The ESA is a substantive statute that was enacted with the express purpose of conserving endangered and threatened species.  16 U.S.C. §1531(b).  The Secretary of the Department of Interior satisfies the purpose of the ESA by implementing a number of protection mechanisms authorized by the ESA including Section 7 consultations.  The ESA requires that all federal agencies must consult with the Secretary to insure that any action “authorized, funded, or carried out by such agency… is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species….” 16 U.S.C. §1536(a)(2).  Therefore, the impact analysis under ESA is intended to ensure the agencies do not act in a manner that could result in the extinction of a listed species.

Cumulative Impacts

Cumulative effects/impacts are defined for purposes of the ESA as, “those effects of future State or private activities, not involving Federal activities, that are reasonably certain to occur within the action area of the Federal action subject to consultation.”  50 C.F.R. 402.02.  The key difference from the term’s meaning under NEPA is the fact that under the ESA, cumulative effects do not include federal activities. Under NEPA, the acting agency must consider the cumulative effect of past, present, and future federal projects. Under the ESA, only private and state actions are considered.  The logic is that the impacts of any future agency action (i.e., permitting) will be evaluated at the time that action goes through the permitting process.  It is also important to note that future activities (that are reviewable as cumulative impacts) is further limited compared to NEPA, by the requirement that the effects must be “reasonably certain to occur.”  The inclusion of the qualifier “certain” means that there is more than a mere possibility that the action may proceed.  See Preamble to Final Joint Consultation Rules, 51 Fed. Reg. 19,926, 19,933 (1986).

Generally, future, unpermitted federal activities are not included in the assessment of cumulative impacts. However, the United States Fish and Wildlife Service accounts for some federal activities not yet permitted when establishing the environmental baseline.  When evaluating the potential effects of a project on protected species, the Service assesses “the direct and indirect effects of an action on the species or critical habitat, together with the effects of other activities that are interrelated or interdependent with that action, that will be added to the environmental baseline.”  50 C.F.R. 402.02.  “The environmental baseline includes the past and present impacts of all Federal, State, or private actions and other human activities in the action area, the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early section 7 consultation, and the impact of State or private actions which are contemporaneous with the consultation in process.”  50 C.F.R. 402.02 (emphasis added).  Therefore, while NEPA considers future federal activities in the cumulative impacts analysis, the implementing ESA regulations provides for consideration of some future federal activities that have not yet been permitted in the environmental baseline assessment.  In short, ESA may consider activities that are planned, but have not yet been executed.

Secondary/Indirect Impacts

Under the ESA, the reviewing agency (i.e., the Service) determines the baseline conditions for the action area.  The baseline is determined so that the project’s effects can have context; that is, “effects on what?”  The baseline is:

The environmental baseline includes the past and present impacts of all federal, state, or private actions and other human activities in the action area, the anticipated impacts of all proposed federal projects in the action area that have already undergone formal or early section 7 consultation, and the impact of state or private actions which are contemporaneous with the consultation process.

50 C.F.R. 402.02.  The inclusion of federal activities that have already undergone consultation creates a “first come first served” problem. Here the most recent agency/applicant runs a higher risk that no further degradation can occur without jeopardizing a listed species or adversely modifying critical habitat.

Once the baseline is determined, the Service analyzes “the effect of the action.”  This term refers to the direct and indirect[1] effects of an action on the species or critical habitat. This is added with the effects of other activities that are interrelated or interdependent with that action, that will be added to the environmental baseline.”  50 C.F.R. 402.02.

Therefore, the effects review includes both direct and indirect effects.  “Direct effects” are commonly defined as those effects that are caused by the action and that occur at the same time and place.  See 4-25 of theEndangered Species Consultation Handbook:  Procedures for Conducting Consultation and Conference Activities under Section 7 of the Endangered Species Act (March 1998, Final) U.S. Fish & Wildlife Service and National Marine Fisheries Service (hereinafter “Consultation Handbook”).  “Indirect effects are those that are caused by the proposed action and are later in time, but still are reasonably certain to occur.”  Id.   The key difference between the scoping of indirect impacts under the ESA versus NEPA is that the effects included in the analysis cannot be merely “reasonably foreseeable” but must be “reasonably certain to occur.”  The ESA requires a greater level of certainty than does the NEPA for an effect to be included in the indirect impacts analysis. However, similar to the NEPA analysis, the scoping of indirect impacts under the ESA may include other federal actions so long as those actions have not undergone section 7 consultation (i.e., not a part of the baseline) but would result from the action under consideration.  See Consultation Handbook at 4-27 through 4-28.

In addition to indirect and direct impacts, the Service is required to review interrelated and interdependent actions.  “Interrelated actions are those that are part of a larger action and depend on the larger action for their justification.”  50 C.F.R. 402.02.  “Interdependent actions are those that have no independent utility apart from the action under consideration.”  Id.  The scoping of interrelated and interdependent actions is conducted by applying a “but for” test.  Consultation Handbook at 4-26.  Thus the Service would ask whether “another activity in question would occur ‘but for’ the proposed action under consultation. If the activity in question would occur regardless of the proposed action under consultation, then the activity is not interrelated or interdependent.  The interrelated or interdependent activities are measured against the proposed action and vice versa.  For example, if the Corps requests consultation for construction of a dam that will provide water to private irrigation canals that will come on line once the dam is completed, then the irrigation canals are interrelated to the proposed dam and must be considered in the biological opinion.  Similarly, a power turbine to be constructed concurrently with the dam would be interdependent with the dam and any impacts on fish passage would be considered.  If however, the Corps is requesting to add a second turbine to an already existing dam, the new turbine would be the “larger action” against which the “but for” test is applied.  That is to say, the existing dam has independent utility and therefore is not interrelated to or interdependent with the proposed action of constructing a second turbine.  Simply stated, the existing dam is included in the baseline.  In the case of the first turbine being constructed in conjunction with the construction of the dam, both are not part of the baseline.  See Consultation Handbook at 4-26 through 4-27.

Conclusion

The scoping of the cumulative and secondary/direct impacts analyses under NEPA, ESA, and CWA are distinct to each statute.  The scoping of the impacts analysis is directly related to the given statute’s overall purpose.  Therefore, the scoping under NEPA is the broadest since it is simply designed to ensure informed decision-making.  The scoping under the ESA and the CWA is narrower in application.  Under the ESA the focus is primarily on private and state actions and impacts above the baseline.  Under the CWA, the focus is primarily on the impacts caused by construction of a project and not the operation.  The ESA’s implementing regulations enumerate standards/parameters for the impacts analysis that are not found in the CWA’s implementing regulations.  There are few cases that address the distinctions between the impacts analysis under these three statutes.

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Protecting Ideas With Confidentiality Agreements

by Howard A. Caplan

Partnering with a larger company can be a powerful way to positively exploit a commercial product or service.  But you must take care to protect the idea behind the product or service.  Premature or non-protected disclosure can allow the “partner” to proceed without you.

Limited disclosure of ideas or information occurs in a number of business areas.  One of the more common is protecting your idea when pitching it to another party.  Your goal is to sell or license the idea, which may be a product or service provided by you or your company; or, possibly partnering with another company in a joint venture.  Licensing is more common because of the difficulty of determining a realistic value before the idea is commercialized.  Another common circumstance is when a prospective buyer of a business wants information from the seller.  The buyer is doing his due diligence investigation.  The seller wants to protect the buyer from using her confidential information if there is no sale.

In either case you would use a Confidentiality and Non-Disclosure Agreement to protect against the improper use of your information.  This agreement is only a prelude to the ultimate contract you will enter into for the actual commercialization of your idea or the sale of your business.  This article will discuss how to protect your idea when pitching it to a company that could use the idea in a commercially viable manner.

Perhaps the most important thing to remember when you have an idea that you think is valuable is that your amazing idea may only be amazing to you.  Approaching companies with ideas can be extremely difficult.  Many companies, more so larger companies, do not readily accept ideas from outsiders or have strict rules about how outside ideas are received.  In one case I twice spoke with the head of U.S. research and development for a large pharmaceutical company about presenting the idea of my client.  The director seemed to express an interest though he never gave me an address to send a confidentiality agreement to.  He spoke to me possibly only because I had his cell phone number.

Yet suppose he had given me the address.  Then I would have sent him an agreement that would provide for the limited disclosure of my client’s idea.  The agreement though would not contain the idea.  This agreement is often called a Confidentiality and Non-Disclosure Agreement (CNDA).  The CNDA is how you protect yourself from unauthorized use of your idea by another party.  Some companies that accept outside ideas will accept your CNDA.  Others will modify it.  And other will use theirs.

Many companies that do accept outside ideas will only do so from your attorney or certain other professionals.  Companies have many reasons for this limitation.  One is protection if they are working on a similar idea.  Another is the expectation of dealing with a non-impassioned party if discussion ensues.  And another is avoiding infringement claims.

Depending upon the nature of the idea and the company you are approaching you may be better served by a one or two step approach.  If the company is interested in using your idea then you will enter into a sale or licensing agreement.

Some important points to consider in either a one or two step approach are:

● How to disclose enough information about your idea for the company to decide if it has an interest in your proposal.

● If the company is interested then when and how much more of your idea will you disclose.  If appropriate, when will you provide product samples.

● How long does the company have to let you know if it is interested in pursuing your idea, not pursuing your idea, or advise you that it has already been pursuing a similar idea.

● Limitations on the company’s use of your information to assess the idea.

● Protecting you if the company claims no interest or that it is pursuing a similar idea, yet actually uses your idea.

● The next step or steps if the company is interested in your idea.

● The application of patent, copyright, or trademark laws to your idea

● What state’s law will apply if a dispute arises and where that dispute can be addressed.

● If you need to agree to keep confidential any information from the company.

Whether you sell or license your idea is less important at this stage then getting your foot in the door.  If the company is interested in using your idea it is paramount to have a solid, well-drafted contract to protect your rights.

Success can be measured in two ways; one is contracting for the positive commercial exploitation of your idea; two is if the idea is a commercial success.  But a commercial success alone maybe of little comfort.  There are many instances when a successful product did not bring success to the person with the idea.  A good contract is crucial.  For example, in two high profile instances the person who sold or licensed the idea to the company (or the persons later owning the licensee rights) prevailed in court because they had well drafted agreements.

In one case Peter Roberts was wrongly told by a Sears Craftsman Tool Division officer that his quick release ratchet would be a side line.  Mr. Roberts sued Sears and won over $8,000,000.00.  In another case the licensee of Listerine won the right to continue receiving royalties even though the trade secret formula had become public knowledge.

For every high profile case there are many modest cases.  And for each of these cases there are many successful on-going license agreements.  This last point merits attention.  You can sell your idea for a set fee.  Or perhaps the idea is such that you can sell a product or service to the company.  You can license your idea and receive an on-going royalty.  The royalty can be for a specified time or perpetual, as in the case of Listerine.  Or you can both sell the idea and receive a royalty.  Again, for every successful Slinky or disc operating system there are hundreds of marginally profitable deals.

In conclusion, the only certain way to protect your idea is to have restraints on the party whom you expose the idea to.  The best method of placing restrictions is a Confidentiality and Non-Disclosure Agreement that sets the boundaries for when and what you will disclose, the scope of investigation by the other party to assess interest in your idea, next steps if there is an interest, and remedies if the other party uses your idea without authorization.

Copyright 2012, Howard A. Caplan

 

Back to School Supplies – for Teachers

by Jennifer R. Cowan

 

Jennifer Cowan, Fred Moore, Andrew Boyer, Danielle Lindauer, and Andrea Johnson preparing and organizing the car loads of supplies before the event.

On August 15^th at Manatee High School, the YLD held our Teaming-Up with Teachers event.  Teachers gathered in the café of the school, where speakers from DeSoto National Park, Build-A-Plane, SMART, and Judge Henderson (on behalf of Justice is Teaching) presented information on how teachers could use available community resources both in and out of the classroom.  Throughout the presentations raffles were held resulting in every teacher obtaining at least one raffle item.  As the teachers were sitting there hearing the presentations and participating in the raffles they saw the Office Max bags with their names on them.  As one teacher stated she “assumed that we all had the same things: pencils, pens, sticky notes, and maybe even some paper clips.”  “Boy were we shocked!”  The teachers were “overwhelmed with the gratitude…”  Instead of small bags with small supplies, each teacher received almost every item they requested and much more, thanks to our generous donors.  Every teacher that asked for paper received a case of paper!  Each teacher that wanted crayons received enough crayons for their entire class!  Big ticket items were also given: Maps ($200-$300/map); Alphabet Rug ($300); and a Presentation Cart ($400-$500).  The resounding sentiment was “it feels like Christmas!”  Tears were shed and when it was all said and done, the teachers said:

“I cannot believe the amount of supplies you all had bought for us teachers.  It was jaw dropping when we walked through the door (it felt like Christmas!) and it was so much more than I had thought to expect.  The guest speakers were fantastic too, and I look forward to contacting all of them…God bless you guys for helping us out in such a financially stressful time in our lives.  I am proud to live in such a wonderful community with such fantastic, giving people such as yourselves.”

“My co-worker and I were so touched that it was difficult not to cry when we received our gifs.  Close to 96% of our students receive free and reduced lunch.  Many are homeless and come to school hungry after the weekend.  Please let the others know how much I appreciate all that they did to make today’s event special.”

“This begins my 20^th year in teaching.  I have been a part of either writing grants for a school, or my classroom, nearly all of those 20 years.  In all of those years, I have never had an organization take the time to hand pick what we wished for!  We were literally moved to tears!”

“To all those who helped make yesterday feel like Christmas for some of us in Title I school… I thoroughly enjoyed listing to the unique speakers and plan to utilize their services this year.  The prizes and bag of goodies for my classroom made me feel special… Thank you for helping my students have a successful year.  Thank you for thinking of us.”

“Thank you so much for everything the young lawyers did for the teachers! You were all so nice, and I never imagined getting all those supplies!”

“Thank you very much for all of the wonder school supplies you and your organization have donated.  You are a blessing to us teachers!”

“Everyday I use something you donated and am reminded of the blessings you gave all us all.  The event was amazing and the speakers you chose to attend were wonderful.  Thank you for a wonderful job you did and for thinking of us during this struggling economic time.”

The YLD thanks the Manatee County Bar Association members for helping us support our community, teachers and students heading Back to School for the 2012-2013 school year.

With every deed you are sowing a seed, though the harvest you may not see. – Ella Wheeler Wilcox

If you have more school supplies that you would like to donate throughout the year, please visit the Teachers’ Wishing Well(http://www.manatee.k12.fl.us/purchase/teachers_wishing_well.htm).

 

Firm News

• LLW is proud to sponsor the Florida Brownfields Association Conference that will take place October 28-31^st in St. Petersburg, Florida. Joe Ullo will present “Identifying & Complying with Continuing Obligation,” Dan Richardson and Dennis Stotts are attending the event. Click here for more information.
• LLW is proud to sponsor the Florida Redevelopment Association Conference that will take place October 24-25^th in Daytona Beach, Florida. Brenna Durden is attending the event. Click here for more information.
• Ken Dodge and Steve Walker will participate in the “Seminole Splash” (Formerly the Seminole Golf Classic) on October 17-19, 2012 in Hollywood, Florida. All proceeds from the event benefit the Boys & Girls Club of the Seminole Tribe of Florida.
• Michelle Diffenderfer is participating in a panel presentation on Environmental Careers as part of the St. Thomas University Law Presentation on October 18^th in Miami Gardens.
• Kevin Hennessey will moderate a Land Use Panel at the Manatee Chamber of Commerce Leadership Manatee luncheon that will take place October 17^th in Bradenton, Florida. LLW is a proud sponsor of the event. Click here for more information.
• Deborah Getzoff attended the Florida Shore & Beach Preservation Association Annual Conference that took place September 26-28^th in Naples, Florida.
• LLW Attorneys participated in the South Florida Manufacturers Association (SFMA) Annual Meeting & Expo that took place September 27th at in Coral Springs, Florida. LLW is a proud sponsor of SFMA.
• Jim Linn gave a presentation on pension issues at the annual Public Employment Labor Relations Forum on September 20^th in Orlando.
• Seth Behn presented “Beyond the Cloud: How 21st Century Technology Empowers Planners and Communities” at the Florida American Planning Association Annual Conference on Friday, September 14 in Naples, Florida.
• LLW sponsored the Palm Beach County Literacy Coalition Annual Spelling Bee that took place September 13^th in West Palm Beach. Steve Walker, Michelle Diffenderfer and Julia Jennison participated as spellers in the event.
• LLW sponsored the Florida League of Cities Annual Conference that took place August 23-25, in Hollywood Florida.
• LLW sponsored the Environmental and Land Use Law Section Annual Update that took place August 9-11, in Ponte Vedra Beach.