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On May 25, 2023, the United States Supreme Court decided Sackett v. EPA, a case concerning the outer limits of the Clean Water Act (“CWA”). The CWA grants the Environmental Protection Agency (“EPA”) authority to regulate water quality in the Nation’s rivers, lakes and streams. But discerning the precise boundaries of the CWA has led to conflicts between private property rights and the reach of the federal government. …
Continue Reading From Murky Waters to Clear Paths: Why Sackett v. EPA Matters for Wetland Development

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.Continue Reading The Future of Fracking in Florida

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

On October 15, 2010, the Environmental Protection Agency will usher in a new era of water quality regulation for Florida’s lakes and flowing waters. Known as the Numeric Nutrient Criteria (“NNC”) rule, the final rule will establish specific numeric limitations on nitrogen and phosphorous concentrations in fresh water lakes and streams.

Before the implementation of this rule, Florida water quality rules were based on a narrative standard that used descriptive language to identify polluted bodies of water. The rule also creates restoration standards for water bodies that are designated as “impaired.” Impaired waters may be waters that are deemed to be polluted to the point where they no longer are suitable for their intended use. The new rule only applies to fresh water, however a similar NNC rule for coastal waters and estuaries is slated for consideration in 2011. These new water quality standards will have significant economic and operational effects on municipalities, agricultural operations, utilities, and future development.Continue Reading EPA Numeric Nutrient Criteria

Storm_at_Shark_River_in_Everglades.jpgFlorida has long been admired for its long shoreline, tropical climate, and preserved natural beauty. For just as long, there has been strong debate over striking the delicate balance between man-made alterations to the land and preservation of its natural features. Recently, the United States Environmental Protection Agency (“EPA”) took another step toward preservation by…