EPA hits gas driller with historic civil penalty for filling W.Va. wetlands
The civil penalty is one of the largest ever levied by EPA for filling wetlands, rivers or streams without a Clean Water Act permit.
The agreement requires Chesapeake, the country’s second-largest natural gas producer, to implement a plan to ensure compliance with federal and state water laws at its natural gas drilling sites in West Virginia — including many that involve hydraulic fracturing.
“With this agreement, Chesapeake is taking important steps to comply with state and federal laws that are essential to protecting the integrity of the nation’s waters, wetlands and streams,” said Robert Dreher, acting assistant attorney general of the Justice Department’s Environment and Natural Resources Division.
EPA and West Virginia alleged that Chesapeake Appalachia LLC funneled discharged sand, dirt, rocks and other fill material into streams and wetlands to construct well pads and other platforms for natural gas operations.
The agency said the 27 sites affected 2.2 miles of streams and more than 3 acres of wetlands. Sixteen of the sites involved the controversial practice of hydraulic fracturing, or fracking.
Chesapeake will be required to fully restore the wetlands and streams where feasible under the settlement. It will also undertake other mitigation projects for areas that cannot be restored.
Gordon Pennoyer, a spokesman for Chesapeake, called the settlement a “key milestone” in resolving claims relating to surface construction that occurred before November 2010.
“The company is fully committed to regulatory compliance and is working with the Environmental Protection Agency, Army Corps of Engineers and West Virginia Department of Environmental Protection to restore the impacted sites,” Pennoyer said.
EPA discovered the discharges through public tips as well as routine inspections. Chesapeake also disclosed 19 potential violations after an internal audit. EPA issued compliance orders for violations at 11 of the sites in 2010 and 2011, and since then Chesapeake has taken steps to restore those areas.
EPA’s settlement comes a year after Chesapeake also pleaded guilty to three Clean Water Act violations at a natural gas site in Wetzel County that is also at issue in today’s action. Last year, Chesapeake was sentenced to pay a $600,000 penalty to the government for allegedly discharging crushed stone into a local stream.
Industry-backed review blasts economic analysis for CWA rule
The analysis significantly underestimates the number of additional waters and wetlands that would receive Clean Water Act protections under the draft regulation, a consultant for the industry group Waters Advocacy Coalition told reporters today. It also underestimates the costs that would be associated with permitting these additional waters, and it relies on “simplistic assumptions” about the benefits of protecting the waters, he said.
“No matter which side of this debate you fall on, this is not an analysis that comes close to doing justice to the problem,” said David Sunding, an economics professor in the College of Natural Resources at the University of California, Berkeley, who served as an economist for the Council of Economic Advisers during the Clinton administration.
Sunding’s study is based on a leaked economic analysis of a draft proposed Clean Water Act regulation. U.S. EPA has not publicly confirmed that the leaked analysis is the document that was sent to the White House Office of Management and Budget with the draft proposed rule, but stakeholders have been treating it as such and say agency staff have privately confirmed its veracity (E&ENews PM, Dec. 6).
The Waters Advocacy Coalition, the industry group that commissioned Sunding’s study of the economic analysis, represents agricultural, real estate development, mining, and oil and gas interests. Representatives of the coalition intend to lay out Sunding’s analysis during a meeting with members of the administration at OMB on Monday, they said.
“They just want the hammer and, unfortunately, this type of regulation plays into their strong suit, which is, ‘we want to regulate,’” said Don Parrish, senior director of regulatory relations at the American Farm Bureau Federation, who hosted today’s call with Sunding.
Sunding said the fundamental problem with the economic analysis is that it is premised on an “implausibly low” number of waters that are not regulated today but would be under the new regulation.
By examining information in an Army Corps of Engineers database about waters that were previously ruled nonjurisdictional, the analysis authors estimate that all streams and wetlands near a major water would be ruled jurisdictional under the draft regulation, as well as an additional 2.7 percent of other waters such as isolated wetlands.
But Sunding said that 2.7 percent estimate is “farfetched in the extreme.”
The problem, he said, is methodological. Not all developers go to the corps for a jurisdictional determination if the waters on their site clearly wouldn’t fall under today’s regulations.
“If you think about the universe of all projects — all development projects — not all of them submit information to the corps for a jurisdictional determination,” he said. “If you think about the impacts of a rule like this, its intent is to bring more projects into the regulatory apparatus, but the way the EPA did the analysis, they completely ignore impacts on any project that wouldn’t have submitted information for a jurisdictional determination.”
Moreover, the period of time from which the authors drew their sample — 2009 to 2010 — was one of the slowest periods of development since World War II, Sunding said, further biasing the estimate.
The authors, however, defended their use of the database in the analysis document. While it is true that not all waters are captured in the corps’ database, they write, the waters that developers did not seek a jurisdictional determination for are “also likely to be the most isolated and the least connected to other waters and therefore the least likely to have their status changed under this proposed rule.”
Study also finds fault with cost estimates
In addition to underestimating the total scope of the rule, Sunding argues, the analysis also lowballs the costs associated with this broader jurisdiction.
While the economic analysis counts costs associated with permitting activities and mitigating impacts to waters, it ignores the cost of delays brought about by this process and the costs that will come as industry scales down activities to avoid affecting waters, he said.
“The result of ignoring … a couple of categories of cost is that the cost per permit or cost per acre assumptions that they’re making are way too low,” he said.
While businesses may adapt to longer permitting time frames, some additional costs will be unavoidable, Sunding said, for instance, if a real estate developer pays an annual option on a piece of land.
But Jon Devine, senior attorney at the Natural Resources Defense Council who has also recently met with administration officials about the rule, said businesses operated just fine when the federal government claimed broad jurisdiction over waters before a Supreme Court decision in 2001 blew a hole in their legal theory justifying authority over isolated waters.
“Prior to 2001, these operations certainly knew that they needed permits to discharge into wetlands and small streams,” said Devine, who has been pressing the White House to propose a rule that automatically brings more geographically isolated wetlands under federal jurisdiction without individual analyses. “Between 2001 and now, they still probably should have suspected that they did. … It should not be a revelation to any industry that they might need to comply with the Clean Water Act if they’re polluting or destroying certain kinds of water bodies.”
Finally, Sunding argues that the economic analysis of benefits that would come from protecting additional waters rests on “simplistic assumptions” that “fall short of what would be best practice.”
The studies that the analysis draws on are dated and not always transferrable to the issue at hand, he said.
“A wetland’s not a wetland’s not a wetland, and I think they should have done a better job of differentiating between types,” Sunding says. This “is a very significant regulation, and when you get up into that range [of costs], I think it deserves a more rigorous economic analysis than this has gotten.”
89 House Dems urge swift issuance of proposed rule clarifying scope of CWA
By: Annie Snider, E&E reporter
Published: Tuesday, December 17, 2013
House Democrats yesterday swung back at GOP calls to slow down the process on a new Clean Water Act regulation, with 89 members urging U.S. EPA to swiftly propose the rule to clarify which streams, creeks, bogs and marshes fall under the protection of the federal law.
“For the sake of our communities and the prospects of having waterways clean enough to swim in, fish from, and drink from, we must have a rule that protects all waters of the United States under the Clean Water Act, and we need your leadership to make that vision a reality,” the lawmakers wrote EPA Administrator Gina McCarthy in a letter organized by Reps. John Dingell of Michigan, Louise Slaughter of New York and Jim Moran of Virginia.
Regulators and industry have been stuck in a legal quagmire in recent years following two muddled Supreme Court decisions in 2001 and 2006 that left gaping uncertainties around which waters and wetlands fall under the jurisdiction of the Clean Water Act. EPA sent a draft proposed rule to clarify the law’s scope to the White House for interagency review in September.
House Republicans, however, have taken issue with the fact that the agency submitted the rule to the White House before an outside panel completed its review of a scientific study that EPA has said will form the basis of the final rule.
House Science, Space and Technology Chairman Lamar Smith (R-Texas) has called on the White House Office of Management and Budget to return the draft rule to EPA until the scientific study is finalized. He has also requested that the review panel consider additional questions about the study (E&ENews PM, Nov. 15).
“Putting the regulatory cart before the scientific horse is a direct violation of the EPA’s pledge to make ‘sound science and public participation the backbone of our rulemaking efforts,’” he and Rep. Chris Stewart (R-Utah) wrote last month.
Yesterday, EPA Associate Administrator for Congressional and Intergovernmental Relations Laura Vaught replied to Smith’s letters to the agency and the review panel, saying that some of his suggested questions fall outside of the panel’s scope and that others would fit within the review questions laid out by the agency.
The scientific review panel kicked off its only public meeting yesterday in a Washington, D.C., conference room. The panel chairwoman reminded reviewers from the outset that their scope was science, not policy, but the discussion frequently stumbled upon the challenges of disentangling the two.
Notably, some panel members raised questions about the details of the regulatory context of their work and appeared unaware that a version of the draft regulation had been publicly leaked (Greenwire, Nov. 13). Smith and industry representatives have pressed for the panel to be given a copy of the draft regulation.
Christopher Zarba, acting director for EPA’s Science Advisory Board Staff Office, responded to the issue yesterday, saying the committee will be given a copy of the regulation when it is formally proposed and that it would be “inappropriate” for the committee to be reviewing and commenting on the regulation before it is publicly available.
The Swamp Stomp
Volume 13, Issue 49
The National Wetlands Inventory (NWI) is managed by the US Fish and Wildlife Service (FWS). This inventory is based upon an interpretation of what the FWS calls a wetland. The definition of a NWI wetland is defined by the 1979 document the Classification of Wetlands and Deepwater Habitats of the United States (Cowardin et al., 1979).
In September 2013 and update to Classification of Wetlands and Deepwater Habitats of the United States was released by Federal Geographic Data Committee (FGDC). The primary objective of the document was “to impose boundaries on natural ecosystems for the purposes of inventory, evaluation, and management.” The FGDC Wetlands Classification Standard (WCS) provides minimum requirements and guidelines for classification of both wetlands and deepwater habitats that are consistent with the FGDC Wetlands Mapping Standard (FGDC-STD-015-2009).
The FGDC Wetlands Classification Standard is intended for all Federal or federally-funded wetlands inventory mapping including those activities conducted by Federal agencies, states, and federally-recognized tribal entities, non-governmental organizations, universities, and others. Specifically, if Federal funding is used in support of wetlands inventory mapping activities, then use of this Standard is mandatory. The adoption of this Standard for all other wetlands inventory mapping efforts (non-federally funded) is strongly encouraged to maintain and expand wetlands data.
Now this may not sound like a big deal and perhaps it is not. However, you do have to remember that in the NWI definition of a wetland only one parameter (soils, vegetation, or hydrology) must be met to define an area as a wetland. This has not changed with the new edition. In fact there is a section that expands this concept that only one criteria could be used to define a wetland. What is a bit troubling is that the report, Connectivity of Streams and Wetlands to Downstream Waters released in September 2013 specifically states that the FWS NWI wetland definition was used in the development of the document. As you will recall the Connectivity document serves as the scientific basis for the new EPA wetlands rule that was recently leaked.
To add to the confusion there is a section in the new document that refers to exemptions.
1.2.1 Exemptions to the FGDC Wetlands Classification Standard
2. Mapping designed, or intended, to support legal, regulatory, or jurisdictional analyses by Federal, Tribal, state, and local regulatory agencies or to differentiate between regulatory and non-regulatory wetlands.
Now this does make sense in the context of the original intent of the NWI program. That intent was to assist FWS biologist in locating areas that may support various wildlife species of concern. That is the mission of FWS after all.
However, it would appear that there is a new intent for the NWI. Namely there appears to be an expansion over what would be considered a wetland. Normally we would dismiss the NWI as being inaccurate. Even the US Army Corps in its Wetland Delineation Manual Regional Supplements advises us not to use the NWI for delineation purposes.
So it begs the questions as to why this update was undertaken? They have not updated the maps to any great degree. The Corps does not use the NWI definition. However, it would appear that EPA does. Perhaps that is the reason. Perhaps using a 1979 definition in a 2013 rule is not cool. It would look a lot nicer to have that 2013 date on it.
Overall there is not much in the way of major changes between the old and new documents. There are further refinements including:
- Wetland/Deepwater boundary
- Growing Season (Plant die back as opposed to USDA temperatures)
- Geospatial Seam
- Nontidal Water Regimes
- Tidal Water Regimes
If you have a chance, spend a few minutes pursing the new document. I have put a copy on our server. It is not the easiest document to find.
Have a great week!
Volume 13, Issue 48
Each week we try to keep you updated on what are the new developments in wetlands rules, regulations and technologies. Sometimes this gets translated into some unhappy news. There have been a lot of this lately especially in light of the looming proposed EPA wetland rules.
But it is Thanksgiving this week and we do have a lot to be thankful for. Not the least that work in the wetlands field has been quite busy. The wetlands jobs market is still relatively strong thanks to the oil and gas business. To that end I thought it might be helpful to focus on the good rather than the bad as week look forward to that turkey dinner.
To start we need to agree what job market we are in. Wetland scientists are often listed under the overall category of environmental scientists or environmental engineers. I suppose this is fair, because many wetland scientists wear a number of hats in their jobs. It is not unusual for an environmental scientist to work on a wetland delineation one day, perform a phase one site assessment on another, and then do a little water sampling on yet another day. Wetland scientists can be quite multidisciplinary.
The good news is that the job market for environmental and wetland scientists is very robust. According to the Bureau for Labor Statistics, employment of environmental scientists is expected to grow faster than the average for all occupations through 2020. They estimate that the job rate growth is better than 22% per year. It is often hard to cleave out just the wetland scientist role from this statistic; however there are a couple of points that may help.
First, most wetland scientists are really wetland engineers. This may be a bit of a shock but it comes down to the definition of scientist versus engineer. A scientist is engaged in original research searching for answers to a question. An engineer uses the know science to solve an answer to a question using known data and procedures. An example of the difference is demonstrated by the US Army Corps of Engineers wetland manuals. Wetland scientists developed the manuals by conducting research. Wetland engineers use the procedures in the manuals to identify a piece of land as being a wetland or not. However, there is no original research going on.
To be fair there are circumstances that do require original research to identify a site as being a wetland. That is when we get to turn back into scientists. However, in the day to day practice of wetland studies, most of the work falls under the category of engineering. I suppose that is why the US Army Corps of ENGINEERS runs the program. It also explains why most of us work for engineering companies.
Before you get mad at me for this apparent treason in the scientist versus engineer war, please consider the following from the BLS.
Fewer opportunities for conservation scientists and foresters are expected in the Federal Government, partly due to budgetary constraints. Also, Federal land management agencies, such as the Forest Service, have de-emphasized their timber programs and increasingly focused on wildlife, recreation, and sustaining ecosystems, thereby increasing demand for other life and social scientists relative to foresters. However, a large number of foresters are expected to retire or leave the Government for other reasons, resulting in many job openings between 2000 and 2010. In addition, a small number of new jobs will result from the need for range and soil conservationists to provide technical assistance to owners of grazing land through the Natural Resource Conservation Service.
Employment of environmental scientists and hydrologists is expected to grow faster than the average for all occupations through 2020, while employment of geoscientists is expected to grow about as fast as the average. The need to replace environmental scientists and geoscientists who retire will result in many job openings over the next decade. Driving the growth of environmental scientists and geoscientists will be the continuing need for companies and organizations to comply with environmental laws and regulations, particularly those regarding groundwater contamination and flood control. However, oil company mergers and stagnant or declining government funding for research may affect the hiring of petroleum geologists and geoscientists involved in research. Instead, increased construction and exploration for oil and natural gas abroad may require geoscientists to work overseas and in the United States as areas are opened for exploration.
Consulting firms offer perhaps the most opportunities for an environmental scientist to gain employment. They help businesses and government agencies comply with environmental policy. There are two types of consulting firms: the larger multi-disciplinary engineering companies can have thousands of employees who work on large, long-term projects, while the smaller specialty consulting firms work more often with businesses and clients in the government and private sectors. Each of these has its pros and cons.
The BLS has published some additional statistics about the environmental engineer labor market.
In 2010 there were about 51,400 environmental engineers employed. That number is expected to rise to 62,700 by 2020. That means there is a need for 11,300 new employees in the job market. Bu comparison there is an expected 14% rise in all occupations and only 11% for other engineering disciplines. I suspect that given that the economy is stuck those numbers are optimistic. However, wetland work is still growing, especially in the oil and gas sector.
I started this post with the intent of relaying some happy news. Despite all the negative stuff in the news, work in the wetlands field is still thriving. For that we should give thanks and on that note:
Have a Happy and Blessed Thanksgiving!
Volume 13, Issue 47
Last week the draft Clean Water Act rules were leaked by House Science, Space and Technology Chairman Lamar Smith (R-Texas). “This could be the largest expansion of EPA regulatory authority ever,” he said in a statement. “If the draft rule is approved, it would allow the EPA to regulate virtually every body of water in the United States, including private and public lakes, ponds and streams.”
The draft rules direct EPA and the Army Corps of Engineers to assert jurisdiction over all tributaries, regardless of size and flow, and all lakes, ponds and wetlands within a floodplain. The proposed rule is intended to reduce documentation requirements of areas that may have been questionable in the past. The intention is to establish firm rules that reduce the number of case-by-case studies that may have resulted in a water body being non-jurisdictional in the past.
The rules are based upon the September 2013 draft,”Connectivity of Streams and Wetlands to downstream Waters: A Review and Synthesis of the Scientific Evidence.” This document had been out for public comment up until November 6, 2013. Over 57,000 comments were submitted on it. A public hearing is scheduled for December 2013 in Washington, D.C.
Of main concern is, what are the regulatory implications of the “study?” Conveniently, we have put together several workshops to address this very topic. Now with this new leaked guidance we have a very clear picture of the plan.
The leaked rules are over 320 pages long. I guess when you base it upon a 331 page scientific study you have the need to be verbose. The primary purpose of the rules is to define what a “waters of the US” is. This is the proposed definition (Page 9).
- All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commence, including all waters which are subject to the ebb and flow of the tide;
- All interstate waters, including wetlands;
- The territorial seas;
- All impoundments of waters otherwise defined as waters of the United States under this definition;
- All tributaries of waters identified in paragraphs (1) through (3) of this section;
- All waters, including wetlands, adjacent to a water identified in paragraphs (1) through (5) of this section; and
- On a case-specific basis, “other waters”, including wetlands, provided that those waters alone, or in combination with other similarly situated waters, including wetlands, located in the same region, have a significant nexus to a water identified in paragraphs (1) through (3) of this section.
There are a couple of key terms are worth mentioning.
Significant nexus: means more than speculative or insubstantial effect that a water, including wetlands , either alone or in combination with other similarly situated waters in the region, has on the chemical, physical or biological integrity of a water.
Wetlands: Oh wait they must have forgotten this one. There are a many references to the standard definition, “those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas.”
However, there is no specific technical reference as to what the appropriate technical procedure is to figure this out. One might have thought they would make reference to the US Army Corps of Engineers Manuals and Regional Supplements. Perhaps it is in there somewhere. I did find one reference to these that pertains to when a ditch may be jurisdictional. One would think that given the 300 plus pages of this definition of waters of the US and the many references to wetlands there might be a description of what exactly a wetland is.
What is troubling is that the Connectivity of Streams and Wetlands to downstream Waters study that is included in this document as an appendix does answer the wetlands definition question. The study uses the old US Fish and Wildlife Service (USFWS) technical definition that a wetland has to have either hydric soils, hydrphytic vegetation, or wetland hydrology. Note the “or” condition. The Army Corps manuals have theses as an “and” condition. So which is it? Should we use the FWS definition which would arguably identify more areas as wetlands and is included by Appendix or the Army’s Corps definition that is never mentioned? But, perhaps I missed it.
To help you better understand the rather expansive implications of these rules, we have a number of workshops being put on in various parts of the country. Please consider joining us for a day and get caught up with the latest developments in this evolving story.
Have a great week!