Splashing Around in Federal Wetlands Jurisdiction
On Tuesday, February 28, 2017, President Trump signed an executive order (Order) aimed at unwinding the rule defining “Waters of the United States,” 80 Fed. Reg. 37,054 (published June 29, 2015) (WOTUS Rule) under the Clean Water Act (CWA). Primarily, the Order instructs the Administrator of the Environmental Protection Agency (EPA) and the Assistant Secretary of the Army for Civil Works to rescind or revise the WOTUS Rule and to consider interpreting “navigable waters” in a way that conforms to former Supreme Court Justice Antonin Scalia’s opinion in the case of Rapanos v. United States. Shortly after, EPA and the Army Corps of Engineers (ACOE) published notices on their websites stating their intent to review and rescind or revise the WOTUS Rule consistent with the Order. The WOTUS Rule establishes the extent of the ACOE’s jurisdiction under its Clean Water Act wetland permitting program.
To fulfill the Order, the agencies have a tough road ahead of them. The recently adopted WOTUS Rule is now final (although its implementation was halted by a stay Order entered by the U.S. 6th Circuit Court of Appeals). Therefore, any repeal or revision of the Rule will be subject to the same level of scrutiny if challenged as the rule it would replace. A new round of rulemaking by the EPA and ACOE will be required, with the same procedures as were followed to promulgate the recently adopted WOTUS Rule. EPA and the ACOE will be required to examine all relevant data and give a reasoned explanation for a revised rule, including any reasons for disregarding facts or circumstances that gave rise to the previous WOTUS Rule.
If the agencies decide to simply repeal the WOTUS Rule, the extent of the ACOE’s jurisdiction over WOTUS reverts to the pre-WOTUS Rule, under which agencies established the reach of WOTUS relying on agency guidance documents that incorporate Justice Kennedy’s significant nexus test from the Supreme Court’s plurality decision in Rapanos. If the agencies instead try to alter the WOTUS definition so that it aligns with Justice Scalia’s much narrower view of the CWA’s scope articulated in Rapanos, they will have to provide a reasoned explanation as to their departure from not just the WOTUS Rule, but also from the previous EPA and ACOE regulations and guidance documents. Whatever route is chosen, there are sure to be challenges to the resulting changes to the WOTUS rule, all of which may take many years to resolve.
The Attorneys of Lewis, Longman & Walker are highly experienced in assisting landowner clients in navigating the maze of regulations implemented by EPA, the ACOE and state and local agencies, including the WOTUS Rule. If you have questions about how these regulations may affect your property please contact Wayne E. Flowers at wflowers@llw-law.com or by calling 904-353-6410.
2017 Retirement Legislation
by Jim Linn and Glenn Thomas
As we enter the third week of the 2017 legislative session, there has been some committee activity on the few retirement bills filed this year. Also, an FRS rate bill has been filed — HB 7022 — setting the new FRS contribution rates for the year beginning July 1, 2017. All the bills are summarized here, with the latest legislative action on each bill. Copies of any bill can be viewed at the legislature’s website: www.leg.state.fl.us. Please feel free to contact Jim Linn or Glenn Thomas if you have any questions.
Click here to read the full report on the following:
SB 158 / HB 143 Firefighter Presumptions (Latvala / Fitzenhagen and Willhite)
SB 428 / HB 353 Local Governments Joining FRS (Brandes / Fischer)
HB 603 / SB 632 Long Range Investment Return for Public Pension Plans (Fischer/Brandes) SB 658 / HB 873 Adds Public Safety Telecommunicators to FRS Special Risk Class (Rader/ Russell)
SB 1246 Renewed Membership in FRS (Brandes)
SB 7022 (by the Senate Committee on Governmental Oversight and Accountability) – FRS Rates
Deborah A. Getzoff Selected as a Land Use Hearing Officer for Manatee County
Lewis, Longman & Walker, P.A. Attorney Deborah A. Getzoff was recently selected as a Land Use Hearing Officer for Manatee County’s Building and Planning Department. She will hear cases related to special permitting and variances. Ms. Getzoff has over 35 years of experience in environmental law and administrative law and policy in both the private and public sectors. Her practice focuses on state and federal permitting for land development and coastal projects. Due to her eleven years as Southwest District Director for the Florida Department of Environmental Protection, Ms. Getzoff has extensive experience with environmental permitting, compliance, enforcement and outreach management. She can be reached at dgetzoff@llw-law.com or at (941) 708-4040. Click here to view more information about the Manatee County Building and Planning Department.
Vacation Rental Owners Seek Equal Treatment From Local Governments
by Brian Burgess | Feb 1, 2017 | Click here to read the article on TheCapitolist.com
Heading into the 2011 legislative session, vacation rental property owners faced crushing local regulations designed to stamp them out of existence in communities across the state. Local residents who lived in beachfront property year-round didn’t like the constant flow of new guests, the increased traffic, and have leveled a handful of other complaints. But instead of trying to stamp out bad behavior by passing regulations that would apply equally to all, city and county governments were passing laws and regulations in a deliberate effort to choke out vacation rental owners.
Enter Lori Killinger and the Florida Vacation Rental Managers Association (FL VRMA), which helped marshal the votes necessary to get a vacation rental regulation preemption bill introduced into the legislature. Working together, Killinger and FL VRMA made their case to the Florida legislature, which passed the bill, and ultimately was signed into law by Governor Rick Scott. For the time being, at least, Florida’s $31 billion-dollar vacation rental industry was be safe.
But it didn’t last long. Beginning almost immediately, cities and counties, fueled by vacation rental competitors, pushed back. Unwilling to pass regulations that targeted unwanted behavior equally, in part because it would also restrict the behavior of full-time residents who also voted in local elections, local politicians felt compelled to do something. They succeeded in rolling back portions of the preemption law, restoring just enough local regulatory leeway to embolden the local governments.
As a result, a slew of aggressive local laws and regulations were passed, often stretching legal interpretations to the limit, triggering expensive lawsuits and crimping Florida’s tourism industry. In Miami Beach, for example, some vacation rental owners have been fined as much as $20,000 for violations of short-term rental ordinances, while others are forced to comply with onerous regulations that drive up the cost of operating a vacation rental home, and putting some out of business. Florida’s entire economy is negatively impacted by overreaching tourism regulations.
“It’s not local government’s job to pick winners and losers in the property rights game,” says Lori Killinger, who spoke briefly to The Capitolist when spotted in the capitol building last week. “It is government’s obligation to treat property owners the same, whether you own a home and live in it full time, own and rent it on a long term basis, or own and rent it on a short term basis, your property rights are equal under the law. Local government should regulate the activity, not the use.”
Now Killinger and the FL VRMA find themselves at the vanguard of another legislative battle to restore the rights of vacation rental owners. And State Senator Greg Steube and State Representative Mike La Rosa have introduced a seemingly straightforward solution: Senate Bill 188 and it’s House companion, HB 425. The solution is elegant, in that the bill proposals merely state that:
A local law, ordinance, or regulation may not restrict the use of vacation rentals, prohibit vacation rentals, or regulate vacation rentals based solely on their classification, use, or occupancy.
That leaves local governments with a whole lot of leeway to regulate all the bad behavior they want. Don’t like loud music? Pass a law. Don’t like more than a few cars parked on the street in front of a single property? Pass a law. Don’t like more than two trash cans on the curb per house on garbage day? Pass a law.
Just make sure the laws that are passed apply to every homeowner equally.
Vacation Rentals De-reg Bill Passes House Committee
by Scott Powers | March 14, 2017 | Florida Politics | Click here to read the article on FloridaPolitics.com
A bill that would roll back all local ordinances and regulations of vacation rental houses to 2011 codes got a split-vote approval Tuesday from the House Agriculture & Property Rights Subcommittee.
The issue was fashioned as one pitting property rights — those of people or companies that buy houses and convert them into short-term vacation rental properties, versus those of neighbors who don’t like having small hotels pop up in their neighborhoods.
Senate Bill 425, presented by state Rep. Mike La Rosa of St. Cloud, would essentially ban cities and towns from treating vacation rental houses differently from any other houses in the neighborhoods. That was Florida law after a similar bill was signed in 2011, but much of that deregulation was rolled back in 2014 after cities and counties complained.
The ensuing regulation has gotten out of hand, La Rosa argued.
“We’ve seen an obscene amount of ordinances from local government, which basically, in my mind, is a property taking: You bought this property for a certain reason, but we’re going to pass all these ordinances preventing you from being able to rent that property.”
At stake is the rapid rise throughout Florida, but particularly in tourist areas, of single-home vacation rentals, fueled by such app-based advertising services as Airbnb and Home Away, which are funneling hundreds of thousands of Florida visitors into alternatives to hotels, motels and resorts. Alternatives typically with multiple bedrooms and baths, kitchens, yards and swimming pools.
Also at stake are cities and counties alarmed by vacation homes popping up anywhere, sometimes occupied for a few days at a time by quiet families from England, and sometimes by fraternity brothers looking for wild times with loud parties, lots of trash and numerous cars taking up the street curb.
Lori Killinger, a lobbyist for the Florida Vacation Rental Managers Association and Jennifer Green of the vacation rental advertising app Home Away argued that the regulations can stifle the tourism industry. Killinger said the vacation rental business is a $31 billion a year business, but that goes to one homeowner at a time. Green argued that visitors are looking for choices.
“Some individuals are making decisions about coming to Florida on whether or not they can stay with 15 people in six hotel rooms, or they can stay all together at the beach down in the Keys, or Pinellas County or somewhere similar,” Green said. “So the question for you all is do you want to do anything to stifle tourism for Florida?”
Homes turned into vacation rentals are not homes anymore, argued opponents of the bill, such as Florida Association of Counties lobbyist Eric Poole and Casey Cook of Florida League of Cities.
Flagler County attorney Al Hadeed told stories of fraternity parties, and of one house flooded with lights by some renters who were using it to film a pornographic movie.
The 2011 law, Hadeed said, “opened up real estate syndicates that created a hotel in single-family neighborhoods.”
He drew some support, notably from Democratic state Reps. Ben Diamond of St. Petersburg and Kamia Brown of Ocoee who argued that home rule should give deference to cities and counties to decide for themselves what to do about vacation rentals.
But La Rosa responded, and won, that they still can pass ordinances to control problems, but the ordinances need to address all houses, not just vacation rental houses.
“I’m saying treat vacation rentals like all other properties,” La Rosa responded. “Whether it’s a trash issue, a noise issue, or too many cars out on the street, treat rental properties like all properties.”
News & Notes
- LLW is sponsoring the 2017 Anchor House Event on March 31st at the Cruise Terminal at Port Manatee. The program will feature Guest Speaker Richard Phillips, the Captain of the MV Maersk Alabama and survivor of the Somali pirate attack that inspired a motion picture by Columbia Pictures starring Oscar winning actor Tom Hanks. Proceeds from the event will support the Anchor House, an organization that strives to meet the spiritual, physical and emotional needs of international seafarers at Port Manatee. Click here for more information.
- Richard Green will attend the ABA Section of Environment, Energy, and Resources’ 46th Annual Spring Conference in Los Angeles, March 29-31, 2017.
- The Raise the Bar 2017 event is March 30th at the Raymond F. Kravis Center for Performing Arts Cohen Pavilion in West Palm Beach. The networking and cocktail event supports the Women’s Foundation of Palm Beach County, an organization that empowers women and girls to be leaders. LLW President Michelle Diffenderfer is a Co-Chair of the event. For more information or to register, visit the event website: https://www.womensfoundationpbc.org/rtb2017/.
- LLW Operations Manager Stuart Maslanik and his wife Candice Ericks are Honorees of the Style and Substance Luncheon hosted by the Symphony of the Americas Society on March 24th at the Ritz-Carlton in Ft. Lauderdale. Proceeds from the event will support the continuation of the Symphony of Americas’ many programs. Stuart Maslanik recently joined LLW in February as the firm’s Operations Manager. Click here for more information about the event.
- LLW sponsored Business Before Hours: Innovations in Transportation Breakfast held March 22nd in Riviera Beach. The breakfast, hosted by the Palm Beach North County Chamber of Commerce focused on how the adoption of next generation transportation technology will improve safety and revolutionize how people and goods move. The panel also discussed how evolving communication technology and the internet of things (IOT) will transform cities improving quality of life and sustainability. Click here for more information.
- Terry Lewis and Chris Lyon gave a presentation at the Florida Association of Special Districts Legislative Forum on March 21st in Tallahassee. LLW is a proud sponsor of the event. The reception will also be hosted at LLW’s Tallahassee Office. Click here for more information.
- Brenna Durden and Sean Alveshire are participating in the 2017 JAXPORT Conference March 20-22nd in St. Augustine. This biennial conference attracts logistics and transportation professionals from around the world, offering a unique opportunity to network with leaders in the fields of logistics, shipping and port management. LLW is a proud sponsor of the conference. For more information, visit www.jaxportconference.com.
- LLW sponsored of the Northeast Florida League of Cities “Attitude Adjustment Hour” March 9th in Green Cove Springs.
- LLW Attorney Glenn Thomas will present “175/185 Pension Update” at the Florida Public Employer Labor Relations Association Conference on February 28th in Orlando. The presentation will feature a legislative update focused on pension issues. LLW Shareholder James Linn will also participate in the conference. For more information, visit FPLERA’s event page.