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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

Continue Reading EPA’s New Interim Final Rule Considerably Increases Statutory Civil Penalty Amounts

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

Continue Reading Lee County Included in a State of Emergency Declaration for Algae Blooms from Lake Okeechobee

11760095_10204830523298348_6318609551371833609_nSection 7(a)(2) of the Endangered Species Act (“ESA”) requires that each federal agency ensure that any action authorized, funded, or carried out by the agency is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of critical habitat of those species. When the action of a federal agency may affect a protected species or its critical habitat, that agency is required to consult with either the National Marine Fisheries Service (NMFS) or the U.S. Fish and Wildlife Service (USFWS), depending upon the protected species that may be affected.

Great News for Property Owners in Southwest Florida

On December 4, 2015 the National Marine Fisheries Service (NMFS) signed the Florida Statewide Programmatic Biological Opinion (Biological Opinion), which was based on NMFS review of the impacts associated with the U.S. Army Corps of Engineers (Corps’) authorization of minor in-water activities throughout Florida.Continue Reading Faster Permitting in Florida for Certain In-Water Activities