Department Name - Texas Alliance

Protecting Your Company Today
from Trouble Tomorrow
Presented by
Benchmark Environmental Consultants
Benchmark Environmental
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
 National recognition from the Environmental
Business Journal for Environmental Engineering,
Consulting, International Expansion and Business
Achievement; Best Place to Work – Dallas Business
 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
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
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.
Stream Types Side-By-Side
 To be classified as a wetland, according to
USACE, the area must have indicators of all
three of the following characteristics:
 Wetland
 Wetland Hydrology
 Wetland Plants (hydrophytic plants)
Hydrology Indicators
Drift Deposits
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
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
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
 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
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
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
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)
Intermountain Oil and Gas BMP
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.
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.
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,
species are
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
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
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
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
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
 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);
 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
 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
 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.
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
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.