Last week, the Conservancy of Southwest Florida hosted Cornell University Professor Dr. Tony Ingraffea, as part of its “Evenings with the Conservancy” series who spoke on the “Effects of Unconventional Drilling” on November 8.

Oil & Gas in Southwest Florida

The evening began with an introductory presentation by Nicole Johnson, Director of Environmental Policy

Over the past several years, hydraulic fracturing (or “fracking”) has become a very divisive environmental and political issue in many areas of the country. As our society’s desire for cleaner energy has become more of a priority, lawmakers and agencies at federal, state, and local levels have been confronted with determining whether and to what extent the use of hydraulic fracturing methods should be regulated, and whether such activities pose a potential threat to our drinking water sources.

What is Fracking?

Developed in the 1940’s, hydraulic fracturing is a method to extract conventional oil and gas resources found in permeable sandstone and carbonate reservoirs by drilling vertically into rock formations and injecting fluids under high pressures.


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imac-965325_1280As 2016 closes, we reached out to our team and asked them to share some of the most notable issues in real estate and land use & environmental law:

Residential Closing Best Practices Requirements by Amanda Barritt

2016 saw the CFPB regulations and Best Practices requirements move into high gear with respect to financed residential

landscape-nature-sunset-cloudsFor those unfamiliar with the program and its history, the Lee County (the “County”) Conservation 20/20 program functions as the County’s environmental acquisition and management program that was established to protect our local drinking water, provide nature-based recreational opportunities, protect areas from flooding and provide wildlife habitat.

The Conservation 20/20 program was originally created on July 31, 1996, when the Board of County Commission (the “BOCC”) adopted Ordinance No. 96-12, which created a “Land Committee” to assist in implementing the “Lee County Conservation Land Acquisition and Stewardship Program.” Thereafter, the 20/20 program was substantially amended by Ordinance No’s 96-12, 05-17, and 13-09. Ordinance No. 15-08 was the most recent amendment, which establishes a 15 member appointed citizen’s advisory committee called the “Conservation Lands Acquisition and Stewardship Committee” (CLASAC). CLASAC is tasked with the responsibility of advising the BOCC regarding the acquisition, restoration, improvement and management of conservation lands to meet its enumerated objectives and duties.

It is important to emphasize that, following the adoption of Ordinance No. 15-08, any changes to the County’s 20/20 program must be approved by a “super-majority” vote of the entire BOCC.

Which Lands Qualify for Consideration under Conservation 20/20?


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18050124324_b43e965017_zFollowing two recent incidents, a new emergency rule has been enacted in Florida to ensure that the public, local governments and the Department of Environmental Protection (“DEP”) are notified by all responsible parties following a pollution incident.

Background

On August 28, 2016, Mosaic Fertilizer (“Mosaic”) notified DEP of suspected damage to a gypsum stack liner located at its New Wales Concentrate Plant, which ultimately created a sinkhole that released processed water into the underlying groundwater. While DEP responded to the site within 24 hours to assess potential response actions, the public did not learn of the issue until three weeks later. Also, although DEP reports indicated that no contamination had migrated off-site and therefore no public notification was required under the applicable Florida regulations, many residents remained concerned about the mere possibility of off-site contamination and the timeliness of Mosaic’s public notice.

Thereafter, on September 7, 2016, unauthorized discharges of domestic wastewater were released into Tampa Bay by facilities operated by the City of St. Petersburg, in Pinellas County. Similar to the Mosaic sinkhole, the public and environmental stakeholders expressed concerns about the accuracy and timeliness of information provided to the public by City officials.

Governor Order’s New Emergency Rule


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hurricane-92968_1280On October 3, 2016, in response to a five-day forecast from the National Hurricane Center for Hurricane Matthew, a major storm which is expected to impact large portions of the east coast, the Governor issued Executive Order Number 16-230 declaring a 60 day State of Emergency throughout every Florida county.

Legal Authority for State of Emergency Permit Extensions

As I have explained in recent blog posts, Section 252.363, Florida Statutes, provides that certain qualifying permitees are entitled to extensions following a declared State of Emergency for the amount of time the declaration was in effect, plus an additional six (6) months. In order to obtain such an extension under this statute, permitees are required to submit a written notification to the appropriate authorizing agency (i.e., City, County, Florida Department of Environmental Protection (FDEP), or Water Management District) within 90 days after the State of Emergency has expired.

Development Permits Eligible for State of Emergency Permit Extensions


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This year, on two separate election days, Florida voters had — and will have — the opportunity to vote on two different constitutional amendments.

(Editor’s Note: At press time, the August 30th primary had yet to occur. However, it has since been reported that Amendment 4 was approved by nearly 73 percent of Florida voters at the primary, thus the measure will take effect on January 1, 2018, and expire on December 31, 2037.)

Amendment 4: Florida Tax Exemptions for Renewable Energy Measure

By way of background, the Florida Constitution currently provides for local government ad valorem taxes on real property and tangible personal property, assessment of property for tax purposes, and exemptions to these taxes. Section 4(i) in Article VII of the Florida Constitution also provides that the legislature may prohibit the consideration of the installation of a renewable energy source device in the determination of the assessed value of real property used for residential purposes.


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On July 26, 2016, by a sharply divided 3-2 vote, the Florida Environmental Regulation Commission (“ERC”) approved new changes to Florida’s surface water standards.

What is the ERC?

The ERC is a seven-member board (with two seats currently vacant) that is tasked with setting the standards and rules for Florida Department of Environmental Protection (FDEP) relating to air pollution, water quality, and waste management.

Florida’s Human Health Criteria


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Incremental increases in statutory civil penalty amounts for statutes administered by the Environmental Protection Agency (EPA) have typically occurred. Dating back to 1990, federal agencies have long been required to issue regulations to adjust their statutory civil penalties to reflect inflation, maintain the deterrent effect of statutory civil penalties, and promote compliance with the law.

The Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Debt Collection Improvement Act of 1996, (“DCIA”) required agencies to review their statutory civil penalties every four years and to adjust the statutory civil penalty amounts for inflation if the increase met the DCIA’s adjustment methodology. Over time, since the DCIA methodology caused statutory civil penalties to lose value relative to total inflation, the formula was revised.

Accordingly, for the first time, this year’s adjustments to federal statutory civil penalties were calculated using a revised set of criteria under the 2015 amendments to the Federal Civil Penalties Inflation Adjustment Act (the “2015 Act”). Under the 2015 Act, federal agencies are required to adjust the level of statutory civil penalties with an initial “catch-up” adjustment through an interim final rulemaking and, starting on January 15, 2017, make subsequent annual adjustments for inflation. Thus, once a federal agency such as EPA has enacted the one-time catch-up rule, each statutory civil penalty amount will be adjusted every year (rather than every four years) to reflect the inflation that has thereafter accrued. However, there is a cap within the 2015 Act, under which the maximum amount of any initial catch-up increase cannot exceed 150 percent of the level that was in effect on November 2, 2015.

EPA’s New Interim Final Rule


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6184015031_52bb1094fd_zExecutive Order 16-155

On June 29, 2016, the Governor issued Executive Order Number 16-155, declaring a State of Emergency throughout Martin and St. Lucie Counties due to the increased number of algae blooms from the Lake Okeechobee discharges. In this Executive Order, the Governor states:

[t]he Obama Administration unreasonably failed to budget for adequate maintenance and speedy rehabilitation of the Herbert Hoover Dike, resulting in frequent discharges of harmful water from Lake Okeechobee to the St. Lucie and Caloosahatchee Rivers and estuaries.”

The Governor explained that the release of these waters has caused an increase in algae blooms that have been dominated by Mycrosystis, an algae that can produce harmful toxins.

Executive Order 16-156


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