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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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 directing the state of Florida to take specific measures to restore water quality in the Everglades. As this matter continues to unfold, it could have far-reaching impacts on landowners and agricultural operations surrounding the Everglades.

How We Got Here

EPA’s direction came in the form of an “Amended Determination” filed with the U.S. District Court in an action resulting from lawsuits brought by the Miccosukee Tribe and the Friends of the Everglades to improve the quality of water flowing through the Everglades. The Determination noted that excess levels of phosphorus were found in portions of the Everglades and directed that additional reductions of phosphorus pollution are needed. Excess phosphorus in water above permitted levels is a concern because it can cause chemical and biological changes that degrade wetlands, lakes, and other natural systems. EPA identifies agricultural operations in the area south of Lake Okeechobee as the primary source of excess phosphorus entering the Everglades through stormwater runoff.

Why It Matters

Aside from the environmental benefits of restoring this area, there are several reasons why EPA’s actions here are important. First, if EPA’s directives are accepted, it would likely lead to more stringent water quality standards for projects affecting the Everglades. Second, EPA is proposing to substantially increase the marsh treatment areas that decrease phosphorus levels in runoff water before it enters the Everglades. In addition to the nearly 60,000 acres currently in place or slated for construction for these marsh treatment areas, EPA is proposing to add another 42,000 acres. EPA is eyeing the controversial acquisition of land owned by the U.S. Sugar Corporation to the South Florida Water Management District (“SFWMD”) as providing much of this increased area. Finally, EPA proposes stringent deadlines by which the Florida Department of Environmental Protection (“DEP”) and SFWMD must take certain actions. Most notably, existing permits issued by these agencies would need to be amended to conform with the proposed discharge limits, if adopted by the court.

What Happens Next

The federal court, DEP and SFWMD are currently reviewing EPA’s Amended Determination. A hearing on the Amended Determination is scheduled for October 7, 2010.  Particularly for those with existing or proposed operations which direct runoff to this area, the court’s actions will have significant effect.