Enhanced Water Quality Protection in Florida: An Analysis of the Regulatory and Practical Significance of an Outstanding Florida Water Designation

The Outstanding Florida Water (OFW) designation is the highest protection offered to a body of water by the state of Florida and is available only to those waters whose “natural attributes” warrant it. An OFW designation provides that water body with an antidegradation standard for certain activities affecting its water quality. Ordinarily, waters in Florida must meet the criteria established by rule for their respective class of water (based on the Florida water body classification system), regardless of existing water quality. Once a water body is designated as an OFW, however, a baseline water quality standard is set based on the ambient water quality of that particular water body. Because the OFW water quality standard may be higher than the rule-based water quality classification criteria, regulated activities that may affect the OFW are subject to additional scrutiny by regulatory agencies. In addition, those activities not necessarily occurring within an OFW, but that may “significantly degrade” an OFW, are subject to heightened scrutiny. The ability of current OFW regulation to fulfill the legislative intent behind the OFW designation remains uncertain. Judicial and administrative case law addressing OFWs provide little clear guidance in interpreting the statutory standards for the issuance of permits in or affecting OFWs, especially the “clearly in the public interest” standard. The Florida Department of Environmental Protection (FDEP) should consider adopting for the OFW Program the type of public interest benefits/costs balancing test currently provided for in Aquatic Preserves Program rules. This test creates a discernible distinction between the public interest standard for submerged lands activities that are within aquatic preserves as opposed to those occurring outside of the preserves. The effect of the OFW designation on water quality parameters subject to a narrative standard (nutrients), and on water quality parameters that are not currently established by rule (e.g. emerging pathogens of concern) has not been established. In addition OFWs do not appear to enjoy any special consideration as designated uses subject to impaired waters restoration. The definitions of non-degradation and of ambient water quality for the purposes of OFW designation should be amended to ensure that they contemplate degradation by contaminants other than the current rule–based list of water quality standards and criteria. The extent to which Best Management Practices (BMPs) for silviculture operations are sufficient to safeguard OFW water quality may require further research. In addition, the extent to which the OFW statute and rules recognize the ecological role and recreational value of riparian zones remains in question. This should be clarified by the FDEP

When Statutory Regimes Collide:Will Wisconsin Right to Life and Citizens United Invalidate Federal Tax Regulation of Campaign Activity?

In Federal Election Commission v. Wisconsin Right to Life (2007) and Citizens United v. Federal Elections Commission (2010), the United States Supreme Court dramatically reduced the ability of Congress to regulate campaign finance activities of corporations and others active in elections. Many of the same activities are still subject to restrictions by the Internal Revenue Code, which regulates the type and amount of political campaign activities that certain nonprofits exempt under federal tax law can engage in. In the wake of the campaign finance decisions, the constitutionality of the tax law’s restrictions on campaign activity is now being challenged in the lower courts. This Article analyzes the two recent campaign finance decisions and campaign finance precedents more broadly to determine how, if at all, the Roberts’ Court’s campaign finance jurisprudence is likely to alter existing tax law jurisprudence in the area of campaign activity. It finds that, for the most part, tax law constitutional doctrines have developed independently of other areas of First Amendment free speech law. Based upon an analysis of the distinctive tax law doctrines, the Article concludes that the tax law provision prohibiting section 501(c)(3) charities from engaging in campaigns is likely to withstand challenges arguing that the provision prevents these nonprofits from engaging in protected political speech. However, there is some likelihood that the tax law prohibition is vulnerable to constitutional attack under traditional doctrines of vagueness or overbreadth due to the lack of precision of the terms of the political prohibition, as these have been elaborated by the IRS and the courts to date

Bankruptcy Treatment of Intellectual Property Assets: An Economic Analysis

With the rise of intellectual property in the modern economy, bankruptcy treatment of intellectual property assets has taken on ever greater importance. The law in this area must balance different approaches to asset management. Viewing the world from an ex ante perspective, intellectual property laws seek to foster investment in research and development. Freedom of contract plays a central role in maximizing the potential value of intellectual property by encouraging a robust licensing market to exploit the value of intellectual creativity. By contrast, the bankruptcy system generally views asset management from an ex post standpoint, focusing narrowly on how to maximize the value of a failing or failed enterprise. Thus, bankruptcy law affords trustees and debtors substantial leeway to rescind contracts and reorder the affairs of the failed entity. This article examines the rather complex rules governing the treatment of intellectual property assets in bankruptcy and suggests various reforms that could better promote economic efficiency