Protecting Your Company Today from Trouble Tomorrow Presented by Benchmark Environmental Consultants Benchmark Environmental Consultants Benchmark Environmental Consultants (Benchmark) is a comprehensive environmental consulting firm headquartered in Dallas, Texas. Serving our clients nationwide for over 22 years; • Employ qualified, full-time environmental staff with access to additional resources; Full portfolio of environmental and planning services; National recognition from the Environmental Business Journal for Environmental Engineering, Consulting, International Expansion and Business Achievement; Best Place to Work – Dallas Business Journal; Member of ISNetworld Contractor/Supplier System. • Environmental Services Offered Routing and Siting Analysis for Oil and Gas NEPA Consultation Categorical Exclusions (CE) Environmental Assessments (EA) Environmental Impact Statements (EIS) Phase I & II Environmental Site Assessments Phase III Remediation Site Reclamation Services Environmental Due Diligence Federal, State Agency Coordination Course Outline Natural Resources – Wetlands, Endangered Species, Migratory Birds Cultural Resources Phase I Environmental Site Assessment Baseline Testing for Water Wells Environmental Sensitivity What TCEQ Guidelines Cover: Air Regulations, Stormwater, Water Rights, Disposal of Waste, Reused/Reclaimed Water, Dam Safety, and Surface Casing “Common Environmental Requirements for Regulated Oil and Gas Operations” TCEQ Regulatory Guidance RG-482 Feb 2013. What they DON’T cover – what we are discussing today – the self regulatory approach Waters of the U.S. and Wetlands Ohio Man Charged with Violating Clean Water Act by Discharging Fracking Waste into River Tributary -- On February 14, 2013, BEN LUPO, of Poland, Ohio, was charged in federal district court for the Northern District of Ohio with one count of violating the Clean Water Act. He is accused of directing an employee on January 31, 2013, to illegally discharge brine and oil-based drilling mud into a stormwater drain which flowed into an unnamed tributary of the Mahoning River and ultimately into the Mahoning River near Youngstown. The statutory maximum for violating the Clean Water Act is three years in prison, a $250,000 fine and one year of supervised release. Ben Lupo will know in June if he’ll be sent to a federal prison or get probation. Lupo, 63, of Poland, pleaded guilty in the dumping of oil-field waste into a Mahoning River tributary. A federal prosecutor said he’ll ask the judge to sentence Lupo to three years in prison, which is the maximum the law allows. Clean Water Act The Clean Water Act (CWA) is the primary federal law in the United States governing water pollution. Passed in 1972, the act established the goals of eliminating releases of high amounts of toxic substances into water, eliminating additional water pollution by 1985, and ensuring that surface waters would meet standards necessary for human sports and recreation by 1983. Major amendments were enacted in the Clean Water Act of 1977 and the Water Quality Act of 1987. any discharge of dredged or fill materials into "waters of the United States," including wetlands, is forbidden unless authorized by a permit issued by the USACE pursuant to Section 404. “… the discharge of any pollutant by any person shall be unlawful.” Discharges of Fill Essentially, all discharges of fill or dredged material affecting the bottom elevation of a jurisdictional water of the U.S. require a permit from the U.S. Army Corps of Engineers (USACE or the Corps). These permits are an essential part of protecting wetlands, which are often filled by land developers. Wetlands are vital to the ecosystem in filtering streams and rivers and providing habitat for wildlife. Examples of Fill Identifying Streams and Wetlands All streams generally have significant nexus, as they connect to rivers Not all wetlands may have significant nexus, as they might not have aboveground, underground, or close proximity to Waters of the U.S. Different types of streams and how to identify Perennial Intermittent Ephemeral Different types of wetlands and how to identify Wetlands by region (Gulf Coast vs. Great Plains) Ordinary High Water Mark (OHWM) Definition: A mark left on the landscape from the flooding of a water feature. Marks the average extent of a waterway during a period of time. Used to define the boundaries of where the USACE has jurisdiction over waters. OHWM Stream Types Side-By-Side Wetlands To be classified as a wetland, according to USACE, the area must have indicators of all three of the following characteristics: Wetland Soils Wetland Hydrology Wetland Plants (hydrophytic plants) Hydrology Indicators Drift Deposits Water-Stained Leaves (does not work with cottonwood leaves) Hydrology Indicators High Water Table in Open Pit Dragonfly Nymph (aquatic fauna) Hydrology Indicators Soil Surface Cracks Sparsely Vegetated Concave Surface Hydrology Indicators Moss Trim Lines Crayfish Burrow Wetland Plants (Hydrophytic Plants) Hydrophytic means water loving plants. Common indicator that a tree may be living in/adapted to wetland conditions is the presence of multiple stems/trunks. Nationwide Permits Nationwide Permits, or NWPs, are a set of permits issued by the Corps allowing certain projects to proceed in areas under Corps jurisdiction (wetlands, waterways, etc). Each permit has different conditions, and may or may not require a Pre-Construction Notification (PCN) of the regional Corps office before construction begins in a jurisdictional water. Recommendations for Drill Sites regarding Waters of the U.S./Wetlands… • Consultant or subject expert conducts a desktop review of the topography, presence of streams and/or wetlands, and types of vegetation. • • If needed, a site visit can be conducted to verify whether streams and/or wetlands are present and whether the project may need a permit from the Corps. Even if the project does not fall within a wetland, it is important to know the proximity to any waters of the U.S. or wetlands before any activity begins. Gulf Sturgeon Black-capped Vireo Threatened and Endangered Species Lesser Prairie-Chicken “The lesser prairie-chicken is in dire straights” … in trouble for the past 15 years. Its population is in rapid decline, due largely to habitat loss and fragmentation and the ongoing drought in the southern Great Plains … reduced by an estimated 84 percent .” “It’s Better than an Endangered Listing” On March 27, 2014, the USFWS listed the lesser prairie chicken as a threatened species … The listing recognizes [conservation] efforts with an unprecedented use of a final special rule under Section 4(d) of the Endangered Species Act, USFWS said. It will let Kansas, Oklahoma, Texas, New Mexico, and Colorado to continue managing conservation efforts and avoid further federal regulation of oil and gas, utility line maintenance, and other activities under the Western Association of Fish and Wildlife Agencies’ (WAFWA) range-wide conservation plan, FWS said. What are Threatened and Endangered Species? Species which are designated certain statuses and protections by either/both the state or federal government because the species is threatened with extinction. Endangered species are likely to become extinct in the near future. Threatened species are species likely to become endangered within the near future. History of T&E Species in the U.S. Bison Skulls ~1800 Mounted Passenger Pigeon Bison and the Passenger Pigeons were hunted as food and for their body parts (feathers, furs, hide, bones for fertilizer). The bison was saved from extinction by the effort of a few ranchers in TX and elsewhere. The passenger pigeon, however, was not so lucky and the last one died at the Cincinnati Zoo in 1914. T&E Regulations T&E Species have multiple levels of regulation State regulation May designate and regulate T&E species at the state level through state fish and wildlife departments. These species may include species which are only designated as in peril within the state or are not recognized nationally as in peril; therefore, state regulations must be followed when dealing with these species within states they are listed. The Texas horned lizard is threatened on the state level in Texas, but is neither threatened or endangered on the federal level T&E Regulations Federal regulation Species designated at the federal level are protected in all states and territories of the U.S. These species may include species which are only designated as in peril federally, but not within the state, but federal regulations must be followed for these species in all states. The Houston toad is listed as endangered in both Texas (state level) and the entire U.S. (federal level) even though it only occurs in Texas, granting it both state and federal protections Choosing a Site: Things to Avoid Affects to T&E habitat can be avoided by basic siting considerations, such as not building in wetlands, heavily forested areas, flood plains, etc. Key things to avoid when choosing a site in any area are: Natural, undisturbed, vegetation (forested lots, especially with many old/native trees) Parcels with native vegetation connected, or on the edge of, large natural or wilderness areas/parks Wetlands - areas with natural standing water Forested areas Definition of Critical Habitat Specific geographic area(s) that is essential for the conservation of a threatened or endangered species and that may require special management and protection May include an area that is not currently occupied by the species IPaC – Information, Planning, and Conservation System (online) http://ecos.fws.gov/ipac/ Intermountain Oil and Gas BMP Project http://www.oilandgasbmps.org/resources/wildlife.php Project Reviews Suggested Regarding T&E … Desktop reviews of potential habitat, including: Aerial and topographic maps Soils Known occurrences of T&E and critical habitat Evaluation of potential habitat at sites Surveys for signs of some T&E/migratory species Site design and consultation to avoid T&E Coordination with government agencies Migratory Bird Treaty Act Although not endangered, bird species which migrate long distances and cover multiple nations are more vulnerable to hunting and threats over many areas with different regulations. MBTA and You Do the MBTA terms “take” and “kill” extend beyond such activities directed against wildlife to the wide set of activities that may inadvertently cause a migratory bird death (e.g., operation of oil and gas production facilities) and, if so, how far? • Unfortunately, there is no clear answer among the courts and legal commentators. The law varies circuitby-circuit. • Misdemeanor violations can lead to fines up to $500 and up to six months in jail. • When Does Liability Occur? The Tenth Circuit concluded that MBTA “take” is a “strict liability” misdemeanor crime, covering all deaths of migratory birds (finding there is no mens rea or intent-tokill-birds requirement), and concluded that the MBTA is not unconstitutionally vague. United States v. Apollo Energies, Inc., 611 F.3d 679 (10th Cir. 2010). This reasoning was sufficient to sustain misdemeanor convictions of oil drillers once FWS put them on notice that their heater-treaters could trap and kill migratory birds, but not for conduct that occurred before FWS provided notice that the land-use activity could be a proximate cause of MBTA “take.” Recent Cases In 2014 … two separate federal district courts have declined to extend the scope of the Migratory Bird Treaty Act, 16 U.S.C. §§ 703-712 (MBTA), to federal agency approvals of projects that plaintiffs alleged could potentially and indirectly result in the “taking” of migratory birds … did not need to obtain a permit where the action alleged to take a migratory bird (1) was unintentional and incident to a lawful activity and (2) was the action of a non-governmental third party. Migratory Bird Treaty Act Violations While seemingly innocuous, the clearing of large brush or trees during the nesting season of migratory birds without first checking for nests, and duringconstruction monitoring by a biologist, can result in violations of the MBTA by destroying an active nest. Extensive tree or brush clearing is best done outside of the nesting season. Convictions ExxonMobil was convicted under the Migratory Bird Treaty Act (MBTA) of failing to protect 85 birds from entering and dying in open oil tanks and pits at oil production fields in five states between 2004 and 2009. The company will have to pay $600,000 in fines and spend $2.5 million modifying the oil facilities to prevent future injury to birds. Convictions PacificCorp similarly pleaded guilty under the MBTA to electrocuting 232 Golden Eagles and other migratory birds on its power lines in Wyoming between 2007 and 2009. The company has agreed to pay $1,410,000 in fines and restitution, and spend an additional $9.1 million to repair or replace equipment to protect migratory birds from future electrocution. The agreement with PacificCorp follows years of failure by the utility to use readily available techniques to prevent raptor electrocutions. Migratory Birds Other than some introduced birds (European Starling, House Sparrow), game birds, and a few invasive birds, ALMOST ALL bird species are migratory. Suggestions for Handling Migratory Bird Issues … Avoid obvious nesting sites like rookeries. Perform major tree clearing activities outside of the nesting season. Check with a subject expert on the likelihood on the project having issues with migratory birds. Conduct a desktop review for habitat. Cultural Resources Section 106 What is Section 106 of the National Historic Preservation Act? Section 106 of the National Historic Preservation Act of 1966 (NHPA) requires Federal agencies to take into account the effects of their undertakings on historic properties and archeological sites. It is meant to afford the Advisory Council on Historic Preservation and State Historic Preservation Officers a reasonable opportunity to comment. The historic preservation review process mandated by Section 106 is outlined in regulations issued by ACHP. Revised regulations, "Protection of Historic Properties" (36 CFR Part 800), became effective August 5, 2004. When does Section 106 apply to private lands (i.e. oil and gas development) ? • • If EPA issues a NPDES permit (i.e. discharge of water to a stream), the project needs to comply with Section 106 for the issuance of such individual permits. When the state or local authority issues the permit, Section 106 may not be required. When EPA issues an Underground Injection Control permit for a project, such a project would be subject to Section 106 review. The U.S. EPA administers UIC programs for 10 states, seven of which (AZ, KY, TN, VA, PA, NY, MI) are oil and gas producing states, and all other federal jurisdictions and Indian lands. U.S. Army Corps of Engineers Permits The Corps of Engineers issues Clean Water Act Section 404 permits for impacts to the waters of the U.S. The Corps complies with Section 106 for the issuance of such permits. The Corps often uses special conditions on permits to avoid adverse effects. Many companies are using directional drilling to place pipelines under water crossings and other areas of Corps jurisdiction, thus avoiding the need for a Corps permit. Direct Adverse Effects Direct adverse effects constitute any effects which will directly impact Any Archeological Site or Historic Property. These include: • Any land clearing or earth moving activities • Any excavation or trenching • Any addition or alteration which would change the profile or façade of a structure These are basically any action which would adversely affect the integrity of any site or property Examples of Direct Adverse Effects Excavations to a Middle Archaic Site in South Texas Examples of Direct Adverse Effects Excavations to a Middle to Late Archaic Site in Southern Wyoming Examples of Direct Adverse Effects Excavations to a Middle Archaic Site in West Texas Destroyed by the Landowner Adverse Visual Effects Indirect adverse effects constitute any effects which will alter the overall historic viewshed or traditional/cultural landscape. These impacts are often more difficult to gauge. Historic Properties A Republic of Texas Era Homestead Recommendations for Avoiding Cultural Resources Issues Know the type of permit and land where the project will occur. Federal permits (EPA) and federal lands will trigger Section 106. Conduct a desktop review and check resource sites for known presence of sites or high probability. If necessary, a site visit can confirm whether cultural resources are present or likely. Due Diligence Preliminary Phase I Environmental Site Assessment (ESA) Environmental due diligence includes Phase I and Phase II Environmental site assessments. Such assessments are often undertaken in the United States to avoid liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly referred to as the “Superfund law”. Section of Site Location The past use of a property resulting in contamination by oil, hazardous materials or other regulated pollutants is a consideration prior to drilling a well. Locations with ongoing unauthorized releases of pollutants are also a consideration. Purpose of a Phase I Determine if there is reason to suspect that contamination has occurred; Identify the nature of contaminants; Define the distribution of contamination in the environment, including air, water and soil; Determine the risk from the exposure to these contaminants; and Evaluate the possibility of mitigating these risks. Phase 1 ESA Process Collect of information about past activities and/or events which have resulted or could result in contamination on a property; Conduct a site visit to identify visible evidence of contamination sources or actual contamination (no actual soil or water testing is carried out); and Establish the need for a Phase II ESA. Does this look like a “clean” site? Does this look like a “clean” site? Does this look like a “clean” site? Properties that cause concern Former use that would have involved petroleum or chemicals Adjacent uses that involve petroleum or chemicals Agricultural uses for crops Storage of materials or products directly on the ground surface Poor housekeeping Oil and Gas Exploration Activities Can Cause Concern to Landowners Be proactive – conduct a Phase I prior to any activities Be safe – evaluate likelihood of encountering previous contamination on the property by doing a Phase I Baseline Testing Increase of Pollution Fears The AP found that Pennsylvania received 398 complaints in 2013 alleging that oil or natural gas drilling polluted or otherwise affected private water wells … Over the past 10 years, hydraulic fracturing, or fracking, has led to a boom in oil and natural gas production around the nation. It has reduced imports and led to hundreds of billions of dollars in revenue for companies and landowners, but also created pollution fears. Alleged Water Contamination A Texas spreadsheet contains more than 2,000 complaints, and 62 of those allege possible wellwater contamination from oil and gas activity, said Ramona Nye, a spokeswoman for the Railroad Commission of Texas, which oversees drilling. Texas regulators haven't confirmed a single case of drilling-related water-well contamination in the past 10 years, she said. (NBC news article 2014) Difficult Investigation Experts and regulators agree that investigating complaints of water-well contamination is particularly difficult, in part because some regions also have natural methane gas pollution or other problems unrelated to drilling. A 2011 Penn State study found that about 40 percent of water wells tested prior to gas drilling failed at least one federal drinking water standard… How Pennsylvania Handles it … As of 2012 Pennsylvania Department of Environmental Protection regulations stipulate that if water quality in a water supply is adversely impacted within six months and 1,000 feet of the vertical well borehole for conventional wells or twelve months or 2,500 feet of the vertical well borehole for unconventional wells, the gas company is presumed responsible, unless pre-drilling water quality test results show that the water quality problems existed prior to the gas well drilling. This presumption means that the drilling companies will be motivated to sample all drinking water supplies within the 1,000 or 2,500 foot distances to document pre-existing water quality conditions. Baseline Testing in Pennsylvania • • • Pre-drilling and Baseline - Under regulation, a well operator who wants to prove that pollution of a water supply existed prior to the drilling of the must conduct a pre-drilling survey. Recommended: Alkalinity, Oil & Grease, pH, Specific Conductance, Hardness, Total Dissolved Solids, Total Suspended Solids, Chloride, Sulfate, MBAs/Surfactants, Dissolved Methane, Dissolved Ethane, BTEX, Arsenic, Barium, Cadmium, Calcium, Chromium, Lead, Iron, Magnesium, Manganese, Mercury, Potassium, Selenium, Silver, Sodium Other Suggested Constituents - Nitrate as N, Turbidity, Dissolved Propane, Ethylene Glycol, Total Coliforms, E Coli, Fecal Coliforms Baseline Testing in Texas Pre-drilling and Baseline - There are no testing regulations specific to shale/fracking operations. Texas A&M AgriLife Extension recommends: “Under current regulations and with proper management of the drilling process, it is unlikely that hydraulic fracturing will have any adverse … Because the potential exists for the quality of well water to change … obtain a background water sample and then test periodically thereafter (typically once per year) to monitor the quality of water in their well … Small concentrations of petroleum constituents and natural gas have been known to seep towards the surface from reservoirs … important to measure the baseline chemistry of your well water … Groundwater Testing Suggestions Test for Total Dissolved Solids - If the baseline value for TDS exceeds the EPA secondary drinking water standard of 500 mg/L, you should test to determine what the individual dissolved minerals may be. For example, bromide is common to brackish water and brines that may be associated with oil exploration or ocean water. Any change in TDS from baseline is of concern because it suggests groundwater contamination that may – or may not – be due to oil/gas development. Test for dissolved methane, dissolved ethane, and BTEX. Conclusion Protecting Your Company Today from Trouble Tomorrow Conduct a desktop review of the site – include general topography, vegetation, land use, and natural resources (waters of the U.S./wetlands, endangered species habitat, potential for migratory birds) and cultural resources (prehistoric archeology and historic buildings). Evaluate need for a U.S. Corps Permit (water crossing/wetlands) Avoid natural areas, floodplains, wetlands, native vegetation, forested areas Be aware if any Federal Permits or Federal Lands are involved – extra permitting process If necessary, conduct a site walk through for potential natural resources, cultural resources, or contamination issues. Protect your project by conducting due diligence – check out the property with a Phase I Environmental Site Assessment. Perform baseline testing of known water wells within ¼ mile of the project.