Volume 24, Number 9 ● August 2, 2016
Stormwater/E&S and Wetland Permit Fines Increase
to $51,570 per Day
The financial penalties charged by federal agencies are increasing drastically:
|Violations||Current Max Penalty||New Max Penalty|
|Endangered Species ("take")||$25,000||$49,467|
|Clean Air Act||$25,000||$93,750|
Why are fees increasing?
The Federal Civil Penalties Inflation Adjustment Act was signed into law by President Obama on November 2, 2015. The purpose of this act is to ensure that federal agencies regularly increase their civil penalties in line with inflation and thus maintain the penalties' preventive effect. The Inflation Act requires agencies to (1) implement a “catch up” adjustment to monetary penalties and (2) annually update the fees accounting for inflation. The “catch up” increases and inflation adjustments are based on specifications from the Executive Office of Management and Budget as outlined in the Inflation Act.
Future of fees
Starting next year federal agencies are required to publish in the Federal Register the inflation adjustment each year by January 15. Note, per the Inflation Act the adjustments can be published without public comment.
Who can I contact for more information?
1. Both the U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA) can administer penalties under the Clean Water Act (CWA), for wetlands violations. EPA adjusted for inflation the statutory CWA civil penalties at 33 U.S.C. 1319(d) to $51,570. This covers all CWA judicial enforcement (including 402 and 404 violations). EPA also adjusted its CWA Class I administrative penalty (33 U.S.C. 1319 (g)(2)(A)) to $20,628 per violation with a maximum $51,570, and adjusted its Class II administrative penalty (33 U.S.C. 1319 (g)(2)(B)) to $20,628 per day with a maximum of $257,848. EPA published the adjustments in the Federal Register on 1 JUL 2016 with an effective date of 1 AUG 2016.
The Corps sets its own Class I administrative penalty amounts under the administrative penalty authority for permit violations. 33 U.S.C. 1319(g)(1)(B). Currently, these penalties may not exceed $11,000 per violation, with a maximum total amount of $32,500. 33 C.F.R. 326.6(a)(1). The Corps last adjusted these amounts for inflation in 2013. They have not yet adjusted those penalties in accordance with the 2015 amendments to the Federal Civil Penalties Inflation Adjustment Act of 1990, but have a rulemaking now under way to do so.