Volume 25, Number 13 ● November 16, 2017
Stormwater/E&S and Wetland Permit Fines Increase - UPDATE
As noted in our August 2, 2016 Field Notes, the civil penalties charged by federal agencies increased drastically to comply with the Federal Civil Penalties Inflation Adjustment (FCPIA) Act, signed into law on November 2, 2015. The FCPIA Act requires agencies to (1) implement a one time “catch up” since some penalties had not increased since 1996, and (2) annually update the penalties to account for inflation. After the large “catch up” increase in late 2016, the penalties increased again in 2017 based on a 1.01636 cost-of-living adjustment multiplier. The U.S. Army Corps of Engineers (COE) announced their 2017 civil penalty increases for Clean Water Act violations in the October 13, 2017 Federal Register. The increased COE penalties for Clean Water Act (CWA) violations will take effect December 12, 2017, at which time they will match the corresponding U.S. Environmental Protection Agency (EPA) civil penalties that took effect on January 15, 2017.
| Violations | Past Maximum Penalty | 2016 “Catch Up” Maximum Penalty |
Current 2017 Maximum Penalty |
|---|---|---|---|
| Wetlands Permit1 | $37,500/day | $51,570/day | $52,414/day |
| Stormwater/E&S | $37,500 | $51,570 | $52,414 |
| Endangered Species (“take”) | $25,000 | $49,467 | $50,276 |
| OSHA (“serious”) | $7,000 | $12,471 | $12,675 |
| Clean Air Act | $25,000 | $93,750 | $95,284 |
Moving forward, the agencies are expected to adjust these civil penalties annually to account for inflation. Please contact Doug Chapin, Christie Blevins, Robbie Clark, or Mark Headly for more information.
1. Both the COE and the EPA can administer penalties under the CWA for wetlands violations. EPA adjusted the statutory CWA civil penalties (for inflation) at 33 U.S.C. 1319(d) to $52,414. This covers all CWA judicial enforcement (including Section 402 and 404 violations). EPA also adjusted its CWA Class I administrative penalty (33 U.S.C. 1319 (g)(2)(A)) to $20,965 per violation with a maximum $52,414 per day, and adjusted its class II administrative penalty (33 U.S.C. 1319 (g)(2)(B)) to $20,965 per day with a maximum of $262,066. EPA published the adjustments in the Federal Register on January 12, 2017 with an effective date of January 15, 2017.