The Pennsylvania Department of Conservation and Natural Resources (DCNR) is preparing to roll out an enhanced Environmental Review Tool. The existing tool is widely used by companies and organizations to screen development projects for potential impacts to threatened, endangered, and special concern species and resources in Pennsylvania. Though an exact roll-out date has yet to be announced by DCNR, the most apparent changes in the new tool will be enhanced mapping capabilities and a $40 online credit-card-only fee to be paid before an Environmental Review Receipt is issued. Pennsylvania Natural Diversity Inventory (PNDI) Environmental Review Receipts are required prior to obtaining permits from the Pennsylvania Department of Environmental Protection and the U.S. Army Corps of Engineers. The tool includes databases from three state agencies (DCNR, the Pennsylvania Game Commission, and the Pennsylvania Fish and Boat Commission) and one federal agency (the U.S. Fish and Wildlife Service).
The new tool, called the Pennsylvania Conservation Explorer, will replace the existing PNDI Environmental Review Tool, which has been free-of-charge since its launch in 2005. The Pennsylvania Conservation Explorer combines a new Conservation Planning Tool designed to help avoid impacts during project planning stages with a more robust Environmental Review Tool for formally requesting an Environmental Review Receipt. The new tool also has the ability to serve as a digital hub for revising project boundaries and communicating with DCNR. (The Pennsylvania Fish and Boat Commission, Pennsylvania Game Commission, and U.S. Fish and Wildlife Service may not fully support this functionality.)
Users of the Pennsylvania Conservation Explorer will notice several new features:
- The ability to screen possible project locations for potential environmental impacts without submitting the project locations for review
- The ability to create, revise, and save projects independent of submitting them for review
- The ability to revise submitted projects without resubmitting
The new Conservation Planning Tool provides greater access to conservation and species habitat information and allows users to view sensitive ecological areas and, in some cases, protected species habitats, which should make it easier to identify and potentially avoid sensitive areas. This feature could potentially save time and money by allowing the user to avoid impacts, thus reducing or eliminating the need for correspondence with regulatory agencies. The Conservation Planning Tool may be used without registering or logging in to the Pennsylvania Conservation Explorer website.
The enhanced Environmental Review Tool is more robust than the existing tool and allows users to upload project shape files in addition to drawing project boundaries on-screen. Project boundaries may also be revised without creating a new project search and incurring an additional fee. Additional drawing tools allow a user to edit, crop, and exclude areas—essentially allowing the inclusion of more than one area for a project, a nice upgrade from the previous version. The tool also displays the project buffer area based on the project type.
Digital hub functionality will be available through the My Project feature of the Pennsylvania Conservation Explorer. All correspondence, data, reporting, and project revisions (up to 10 MB in size) can be sent to DCNR through this feature by uploading most common file formats, including doc, jpg, png, text, pdf, ppt, ods, xls, kmz, and kml; however, this feature will be available only to the creator of the project in the Pennsylvania Conservation Explorer. This feature will not be available if a second or third party will be providing project documentation, as project sharing is not expected to be included in the initial release of the tool. In these cases, project information must be provided to the project creator for submission through the tool, or it may be provided outside the tool, as it is now. Users may also choose to submit information via mail or complete an entirely offline review, which would require separate communication and coordination with individual regulatory agencies.
If you have questions about the new Pennsylvania Conservation Explorer tool, please contact the post author, David Quatchak (email@example.com), or Dan Maltese (firstname.lastname@example.org), co-lead of the PNDI workgroup for the Marcellus Shale Coalition’s Surface Use Committee. Both individuals can also be reached at 800-365-2324.
On January 14th, 2016, the United States Fish and Wildlife Service (USFWS) published a final 4(d) rule for the federally threatened northern long-eared bat (Myotis septentrionalis). The final rule lifts the Endangered Species Act’s (ESA) “prohibition against incidental take.” As a result, all otherwise-legal activities related to tree clearing are exempt from the prohibition outlined in the ESA, except:
- Tree clearing within 0.25 mile of known hibernacula
- Tree clearing within 150 feet of a known maternity roost (i.e., a tree used by reproductive females to raise their young) between June 1 and July 31
If these exceptions cannot be avoided by project impacts, a project proponent will need to coordinate with the local USFWS office. The USFWS’s final 4(d) rule recognizes the fact that declines in northern long-eared bat populations are primarily attributable to White-Nose Syndrome (WNS), a fungal disease decimating bat populations, and not from direct take associated with the clearing of forested habitat. While this provides relief for some, it is important to note that take prohibitions of federally endangered Indiana bats (Myotis sodalis) are more stringent and remain in place. The two species’ geographic ranges greatly overlap. Additionally, state agencies have yet to officially weigh in on the final 4(d) rule and whether they will require additional conservation measures for the species.
The entire final 4(d) rule can be found here: https://www.federalregister.gov/articles/2016/01/14/2016-00617/endangered-and-threatened-wildlife-and-plants-4d-rule-for-the-northern-long-eared-bat.
For perspective, northern long-eared bats were listed as federally threatened with an interim 4(d) rule in April 2015. The interim rule allowed certain activities requiring tree clearing to be exempted from the ESA’s “prohibition against incidental take.” Similar to Indiana bats, northern long-eared bats raise their young each summer in trees within forested habitat. Northern long-eared bats range across 39 U.S. states and portions of Canada, which is the largest range of any federally listed species. Each winter, these bats hibernate in the region’s caves and mines (called ‘hibernacula’). WNS was first discovered near Albany, New York, in 2006 and has quickly spread across the eastern United States and Canada. The disease, which is not harmful to humans, causes bats to quickly burn through their fat reserves during the winter hibernation period. Affected animals emerge from hibernacula, depleted of their stored body fat, to a cold and snowy landscape devoid of insects, their sole food source. Mortality as a result of WNS is estimated to range from 90 to 100% at most hibernacula.
If you have any questions about the final 4(d) rule, please contact Ryan Slack at email@example.com or 317-655-7777.
The next submission period for the U.S. EPA’s Chemical Data Reporting (CDR) requirement under the Toxic Substances Control Act (TSCA) is from June 1, 2016, through September 30, 2016, and will cover the 2012 – 2015 reporting years. The previous CDR submission was in 2012 for the 2010 and 2011 reporting years.
Manufacturers and importers of TSCA inventory-listed chemical substances that exceed either the reduced reporting threshold (2,500 lbs/yr for certain chemical-specific TSCA Actions) or the standard reporting threshold (25,000 lbs/yr for all other listed chemicals) for any calendar year from 2012 through 2015 must prepare a CDR for each chemical exceeding the respective thresholds and submit to U.S. EPA. Note that a CDR must be submitted covering all four reporting years if a facility exceeds an applicable threshold in any year.
For chemicals that are imported to the U.S., note that only the primary importer of a chemical (generally the entity responsible for payment of import tariffs) has the TSCA CDR responsibilities. A facility that purchases an imported chemical from the primary importer (or other down-stream entity) is not responsible for preparation of a TSCA CDR for that chemical.
The report must be filed electronically using the U.S. EPA’s Central Data Exchange (CDX) and must include production quantities for calendar years 2012, 2013, 2014 and 2015, as well as the following information for 2015:
- Manufacturing Related Data
- Chemical ID,
- Production quantity,
- Number of workers on site who are likely to be exposed to the chemical,
- Maximum concentration, and
- Physical forms and relative production of each form.
- Processing Related Data
- Types of processes / use (up to 10),
- Industrial function categories,
- Percent of production,
- Number of sites, and
- Number of workers off site who are likely to be exposed to the chemical.
- Consumer and Commercial Use Related Data
- Product categories,
- Whether the product is intended for use by children,
- Percent of production,
- Concentration range, and
- Number of commercial workers who are likely to be exposed to the chemical.
For the 2016 submission, calendar year 2015 is the principal reporting year, which requires the presentation of enhanced manufacturing / processing and use data.
Whether a chemical substance is covered or not covered by TSCA can be determined by searching the U.S. EPA’s Substance Registry Services (SRS) web page.
Note that the current TSCA list includes more than 60,000 chemicals.
Chemicals applicable to CDR submission are identified as “TSCA Inv” in the chemical-specific search tables.
Common chemical substances (by industry sector) included on the TSCA inventory that may be subject to CDR requirements include:
- Primary Metals – Steel, Slag, Baghouse Dust, Copper, Zinc, Manganese and Chromium;
- Secondary Metals – Mill Scale, Zinc Oxide and Ferro Manganese;
- Aggregates – Lime, Hydrated Lime, Bentonite and Kaolin;
- Power – Coal Ash;
- Paper – Secondary Treatment Sludge;
- Refineries – Gasoline and Diesel Fuel;
- Industrial Gases – Hydrogen, Oxygen, and Nitrogen; and
- Miscellaneous – Glass, Tanning Waste and Cement.
TSCA includes a number of important exemptions from CDR reporting, including:
- Byproducts that are disposed (i.e., not released to commerce) need not be reported;
- A chemical present as an impurity (unintentionally present in another chemical substance) is exempt from reporting;
- Polymers have a full reporting exemption;
- Naturally occurring chemical substances have a full reporting exemption; and
- Certain listed forms of natural gas and natural gas liquids have a full reporting exemption.
In addition, partial exemptions are available for certain petroleum process streams and for other common chemical substances (e.g., limestone, hydrogen, oxygen, nitrogen).
Additional information on the TSCA CDR program is provided on the U.S. EPA’s Chemical Data Reporting web page.
If you have any questions about the 2016 TSCA Chemical Data Reporting, please contact Dennis Ritter at firstname.lastname@example.org or 412-429-2324.
The first Federal limits on various metals and other pollutants discharged by steam electric power plants were finalized on September 30, 2015, and published in the Federal Register on November 3, 2015. Limits for arsenic, lead, mercury, selenium, chromium, and cadmium are established in the new rules. EPA notes that steam electric power plant sources make up approximately 30 percent of the toxic and bio-accumulative pollutants discharged into surface waters of the United States by all industrial categories under the Clean Water Act. The Final ELGs set Daily Maximum and 30-Day Average Effluent Limits for discharges from existing and new sources for Flue Gas Desulfurization (FGD) (see 1. below), Gasification (see 2. below), Combustion Residual Leachate (see 3. below), and Chemical Metal Cleaning Wastewaters (see 4. below). Also established are zero discharge requirements for Flue Gas Mercury Control (FGMC), Fly Ash Transport, and Bottom Ash Transport Waters.
The electric power industry has made great strides to reduce air pollutant emissions under Clean Air Act programs, yet many of these pollutants may be transferred to the wastewater as plants employ technologies to reduce air pollution. When metals such as mercury, arsenic, lead, and selenium accumulate in fish or contaminate drinking water, they can potentially cause adverse effects in people who consume the fish or water.
This final rule is the first to ensure that generating stations in the steam electric industry employ technologies designed to reduce discharges of trace metals and other potentially harmful pollutants discharged in the plants’ wastewater. Sources of drinking-water have been identified with increased levels of carcinogenic disinfection by-products (brominated DBPs, in particular trihalomethanes (THMs)) from bromide in the plants’ wastewater. This was tracked from drinking-water utilities’ violations of the THM Maximum Contaminant Level (MCL). Nitrogen discharged by steam electric power plants can also impact drinking-water sources by contributing to algal blooms in reservoirs and lakes that are used as drinking-water sources. Mercury and selenium can bioaccumulate in fish and wildlife, and also accumulate in the sediments of lakes and reservoirs.
The Steam Electric Power Generating Effluent Guidelines and Standards that EPA promulgated and revised in 1974, 1977, and 1982 did not reflect process and technology advances that have occurred in the last 30-plus years (e.g., coal gasification) and the widespread implementation of air pollution controls (e.g., FGD and FGMC). The technological advances have altered waste streams and created new types of wastewater at many steam electric power plants, particularly coal-fired generating stations. Many stations, none-the-less, still treat their wastewater using only surface impoundments, which may be ineffective at controlling discharges of toxic pollutants and nutrients.
1. FGD Wastewater
FGD systems are used to remove sulfur dioxide from the flue gas so that it is not emitted into the air. Dry FGD systems spray sorbent slurry into a reactor vessel so that the droplets dry as they contact the hot flue gas. Although dry FGD scrubbers use water in their operation, the water in most systems evaporates, and the dry FGD scrubbers generally do not discharge wastewater. Wet FGD systems contact the sorbent slurry with flue gas in a reactor vessel, producing a wastewater stream.
Best Available Technology (BAT) required for control of pollutants discharged in FGD wastewater is a chemical precipitation system that employs hydroxide precipitation, sulfide precipitation (organo-sulfide), and iron co-precipitation, followed by an anoxic/anaerobic fixed-film biological treatment system designed to remove heavy metals, selenium, and nitrates. At some stations, this wastewater is managed in surface impoundments, constructed wetlands, or through practices achieving zero discharge. Other technologies have been evaluated or are being developed to treat FGD wastewater, including iron cementation, zero-valent iron (ZVI) cementation, reverse osmosis, absorption or adsorption media, ion exchange, and electrocoagulation.
2. Gasification Wastewater
Integrated Gasification Combined Cycle (IGCC) plants use a carbon-based feedstock (e.g., coal or petroleum coke) and subject it to high temperature and pressure to produce a synthetic gas (syngas), which is used as the fuel for a combined cycle generating unit. After the syngas is produced, it undergoes cleaning prior to combustion. The wastewater generated by these cleaning processes, along with any condensate generated in flash tanks, slag handling water, or wastewater generated from the production of sulfuric acid, is referred to as “grey water” or “sour water,” and is generally treated prior to reuse or discharge.
3. Combustion Residual Leachate from Landfills and Surface Impoundments
Combustion residuals generally collected by or generated from air pollution control technologies comprise a variety of wastes from the combustion process. These combustion residuals can be managed at the station in on-site landfills or surface impoundments. Leachate includes liquid, including suspended or dissolved constituents, that has percolated through or drained from waste or other materials placed in a landfill, or that passes through the containment structure (e.g., bottom, dikes, berms) of a surface impoundment. Most landfills have a system to collect the leachate. In a lined landfill, the combustion residual leachate collected by the liner is typically transported to an impoundment (e.g., collection pond). Some generating stations discharge the effluent from these impoundments containing combustion residual leachate directly to receiving waters, while other stations first send the impoundment effluent to another impoundment handling the ash transport water or other treatment system (e.g., constructed wetlands) prior to discharge.
Surface impoundments are the most widely used systems to treat combustion residual leachate. Some generating stations collect the combustion residual leachate from impoundments and recycle it back to the impoundment from which it was collected. Some generating stations use collected leachate as water for moisture conditioning of dry fly ash prior to disposal, or for dust control around dry unloading areas and landfills.
4. Chemical Metal Cleaning Wastewaters
Chemical metal cleaning wastewaters are generated from cleaning metal process equipment and are most typically treated in surface impoundments and chemical precipitation systems. Other types of treatment and disposal include constructed wetlands, filtration, reverse osmosis, clarification, oil/water separation, brine concentration, recycling, evaporation, off-site treatment, hazardous waste disposal, third party disposal, landfilling after mixing with fly ash, and deep well injection.
Many power generating stations that are currently using impoundments or basic treatment may find that additional measures are required to achieve the new ELG limits. Table 1 provides a summary of effluent limits for discharges from existing sources, while Table 2 provides a summary of effluent limits for discharges from new sources. Table 3 provides a summary of additional effluent limits that will apply for discharges from new sources that produce greater than 25 megawatts (MW). Power generating stations will likely have issues associated with the treatment of selenium and boron in their FGD blowdown. These compounds can be difficult to treat and are not always readily removed using conventional treatment techniques that are currently employed by power generators. As such, additional treatment processes may be required to satisfactorily remove these compounds. CEC has experience in the treatment and removal of these compounds and can assist with evaluation of power station water balances, wastewater sampling and testing, and wastewater treatment plant design.
If you have any questions about the November 2015 Steam Electric Power ELGs and their potential impacts on your station, please contact Ron Ruocco, P.E., at email@example.com or 855-859-9932.
Table 1: Summary of Effluent Limits for Discharges from Existing Sources
(Daily Maximum/30-Day Average)
|Steam Electric Plant Process||Arsenic
as N (mg/L)
|FGD Wastewater||11 / 8||788 / 356||23 / 12||17.0 / 4.4||100 / 30||–||20 / 15|
|Gasification Wastewater||4 / –||1.8 / 1.3||453 / 227||–||100 / 30||38 / 22||20 / 15|
|Combustion Residual Leachate||–||–||–||–||100 / 30||–||20 / 15|
Existing Sources: The final rule establishes Best Available Technology (BAT)-based effluent limits in existing FGD wastewater, existing gasification wastewater, and existing combustion residual leachate discharges. These limits are equivalent to Best Practicable Technology (BPT).
Table 2: Summary of Effluent Limits for Discharges from New Sources
(Daily Maximum/30-Day Average)
|Steam Electric Plant Process||Arsenic
|FGD Wastewater||4 / –||39 / 24||5 / –||–||–||100 / 30||50 / 24||20 / 15|
|Gasification Wastewater||4 / –||1.8 / 1.3||453 / 227||–||–||100 / 30||38 / 22||20 / 15|
|Combustion Residual Leachate||11 / 8||788 / 356||–||–||–||100 / 30||–||20 / 15|
|Low Volume Waste Sources||–||–||–||–||–||100 / 30||–||20 / 15|
|Chemical Metal Cleaning Wastes||–||–||–||1 / 1||1 / 1||100 / 30||–||20 / 15|
New Sources: For new FGD wastewater, new gasification wastewater, new combustion residual leachate discharges, new low-volume waste sources, and new chemical metal cleaning waste sources, the final rule imposes effluent limitations based on New Source Performance Standards (NSPS).
Table 3: Summary of Additional Effluent Limits for Discharges from New Sources
(Generating Stations Producing Greater Than 25 MW)
(Daily Maximum/30-Day Average)
|Pollutant or Pollutant Property||Once Through Cooling||Cooling Tower Blowdown||Coal Pile Runoff|
|Free available chlorine||mg/L||0.20 / 0.20||0.50 / 0.20||–|
|Total Suspended Solids||mg/L||–||–||50 / 50|
|The 126 priority pollutants (Appendix A) contained in chemicals maintenance, except:||mg/L||–||(1)||–|
|– Chromium, total||mg/L||–||0.2 / 0.2||–|
|– Zinc, total||mg/L||–||1.0 / 1.0||–|
(1) Denotes No Detectable Amount
In accordance with a federal court order, the United States Environmental Protection Agency (USEPA) signed a final rule on October 1, 2015, revising the National Ambient Air Quality Standards (NAAQS) for ground level ozone, lowering the primary and secondary standards to 70 ppb, a decrease of 5 ppb from the 2008 ozone NAAQS. The USEPA believes that this standard should be attainable for most areas based on the implementation of other large regulations recently promulgated, e.g., Tier 3 vehicle standards, the Mercury and Air Toxics Standards (MATS) and the Clean Power Plan. The rule was published in the Federal Register on October 26, 2015, and becomes effective on December 28, 2015.
Based on clinical studies and analyses of the effect of ozone exposure, the USEPA concluded a primary ozone NAAQS of 70 ppb is sufficient to protect public health with an adequate margin of safety. Likewise, the USEPA concluded that a secondary ozone NAAQS of 70 ppb is sufficient to protect public welfare, e.g., protection of the forests in Class I areas. The averaging time and form of the standards will remain the same. Compliance is demonstrated when the fourth-highest daily maximum 8-hour ozone concentration per year, averaged over three years, is less than or equal to 70 ppb. The USEPA deemed the 70 ppb standards to be “requisite to protect public health and welfare,” meaning that the level is neither more nor less stringent than necessary.
The implementation timeline for the 2015 ozone NAAQS is as follows:
- October 2016 – States recommend non-attainment designations to USEPA, based on monitoring data from the previous three-year period (2013-2015).
- October 2017 – USEPA makes final non-attainment designations based on monitoring data from 2014-2016.
- 2020-2021 – State Implementation Plans (SIPs) due (date dependent on severity of non-attainment designation).
- 2020-2037 – States must comply with the standard (date dependent on severity of non-attainment designation).
As presented above, states are required to submit recommended non-attainment designations to USEPA by October 2016, based on monitoring data from the previous three-year period. USEPA plans to issue guidance documents in early 2016 to facilitate the designation process.
Several states in the western U.S. have expressed concern regarding the impact of background ozone concentration on ambient air quality and counties’ abilities to demonstrate compliance with the more stringent ozone standards. The USEPA believes that background ozone will not prevent areas from attaining the 70 ppb ozone standards; however, to address this concern, USEPA plans to update the Exceptional Events Rule, which allows states to exclude “uncontrollable pollution,” such as increased ozone levels due to wildfires. Additionally, the USEPA plans to issue a white paper on background ozone and hold a stakeholder workshop. The USEPA will also work with states to address interstate transport of ozone and ozone precursors, especially in areas affected by high background concentrations of ozone due to long-range transport of ozone from other countries and wildfires.
The final regulation also provides a transition mechanism for PSD permitting projects currently underway via a grandfathering provision. Projects subject to this provision must demonstrate compliance with the 75 ppb ozone NAAQS standards from 2008 but will not be required to demonstrate compliance with the 2015 standards. This will allow these projects to proceed without the significant delay associated with preparation of a new compliance demonstration. In order to qualify for the provision, the facility must have achieved one of the following milestones:
- The permitting agency formally determined the application to be complete as of October 1, 2015; or
- The public notice for a draft permit or preliminary determination will have been published prior to December 28, 2015, the date the revised ozone standards become effective.
For 33 states and regions, the USEPA has also increased the length of the ozone monitoring season to address findings that ozone levels can be elevated earlier in the spring and later in the fall than the current monitoring time frame. This extension ranges from the addition of one month for 22 states and the District of Columbia to an additional seven months for Utah. The revised standard also requires that ozone monitors located at multi-pollutant NCore monitoring sites operate year-round. These changes will become effective January 1, 2017.
Additional changes to the NAAQS include updating the Air Quality Index (AQI), streamlining and modernizing the Photochemical Assessment Monitoring Stations (PAMS) network, and updating the Federal Reference Method for ozone to include an additional method for measuring ozone in outdoor air.
Many state agencies will host stakeholder meetings over the next year as they begin to identify potential ozone non-attainment areas. Check your state’s website to follow their activities.
If you have any questions about the 2015 ozone NAAQS and their implications to your facility, please contact either Amy Ritts (firstname.lastname@example.org; 888-598-6808). More information on the ozone standards is available at http://www3.epa.gov/airquality/ozonepollution/actions.html.
Sweeping changes are in store for the Exploration and Production Industry in Ohio with the adoption of the Ohio Horizontal Well Site Construction Rule (Rule). The Rule, which took effect on July 16, 2015, requires that operators obtain a permit from the Ohio Department of Natural Resources (ODNR) to construct a well pad for horizontal drilling in the State of Ohio. While similar requirements have been in place in neighboring Appalachian Basin states for several years, this is a first for Ohio. All sites constructed or modified after the effective date of the Rule will be subject to its requirements. Sites already under construction prior to July 16, 2015, do not require permit coverage.
What are the requirements?
The Rule serves to regulate well site construction activities from project planning through construction and site stabilization. Requirements are specified for the permit application, supporting documents, review procedures, construction activities, permit modifications, certification, and permit transfer.
The application process will involve the completion of forms developed by ODNR and the preparation of a variety of plans and reports to characterize the well site, describe the proposed construction activity, and demonstrate the considerations made for the protection of the health, safety, and welfare of the public and the environment. Required attachments to the application package include:
- Detailed Site Development Drawings
- Emergency Release Conveyance Map
- Sediment and Erosion Control Plan
- Well Site Boundary GIS Files
- Dust Control Plan
- Geotechnical Plan
- Stormwater Hydraulic Report
Application review under the Rule consists of a completeness screening, an on-site field review, and a detailed review of the permit documents. The Rule outlines timeframes for each stage of review and the procedure for addressing deficiencies identified by ODNR. Following permit issuance, construction may begin following 48-hour advance notice to ODNR. Red-line drawings must be kept on site to document deviations from the approved plans, and inspection and maintenance activities must be performed to demonstrate compliance.
The Rule also includes procedures for addressing permit modifications, general requirements during construction activities, requirements for certification of the constructed site, and provisions for ownership transfers.
What it means to industry
In short, the enactment of the Rule means that it will take longer and cost more to build a well pad in Ohio than it had previously.
Operators will need to account for time in their schedules to develop additional plans, conduct more extensive field investigations, and navigate the permit application, review, and certification processes. Additional costs will be incurred for plan preparation and for management of the process.
Some of our key observations:
- The requirement for a geotechnical investigation exceeds the requirements of similar permitting processes in neighboring Appalachian Basin states. In some cases, the specification of safety factors for slope stability and bearing capacity could restrict options based on professional judgment. The safety factor specification could result in more earthwork, more disturbed area, and additional materials and structures being needed.
- The review process will not only add time, but also complexity to well site construction projects. Overall, the process could span from as little as 12 weeks to as many as 29 weeks. Thorough, well-organized applications and timely response to inquiries from ODNR during the review process will be essential to minimizing approval timeframes. This can only happen if the numerous disciplines involved with site planning and permit preparation are effectively coordinated.
- Construction oversight and inspection will be important activities during construction to ensure projects are built in accordance with the approved permit materials and that modifications, if necessary, are well documented. The certification requirements included in the Rule will make this necessary to minimize the risk of encountering unexpected delays just before mobilization of drilling equipment.
The implementation of any new regulation results in evolving processes as grey areas and uncertainties are identified and subsequently resolved. The Ohio Horizontal Well Site Construction Rule will be no different in this respect. It will be important for the industry and ODNR to work together to develop an efficient process, one that will support the construction of well pads that enable safe drilling and production while protecting public health, safety, and the environment.
If you have questions about how this new regulation may affect your business, please contact Dustin Kuhlman in CEC’s headquarters office at email@example.com or by calling (412) 249-1617 or Ababu Gelaye in CEC’s Columbus office at firstname.lastname@example.org or (614) 310-2079.
On April 3, The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) submitted a proposed rulemaking for final interagency review to revise the definition of “waters of the U.S.” (WOTUS) in the Federal Clean Water Act (CWA). The revisions will affect the circumstances in which permits are needed to disturb and discharge fill material into streams, wetlands, or other waters. The EPA and the Corps jointly released the proposed rule in April 2014 and have since received almost one million public comments. The proposed WOTUS rule expands the types of waters that will be considered jurisdictional and subject to CWA permitting requirements through the use of various opinions from past Supreme Court decisions regarding the connections of drainageways and wetlands to downstream waters, as well as by proposing new WOTUS categories and definitions.
The proposed rule will allow the EPA and the Corps to assert CWA jurisdiction on a categorical and regional basis in cases where jurisdiction is currently questionable (e.g., ephemeral or discontinuous streams, isolated wetlands, and ditches), instead of requiring a case-by-case Significant Nexus Determination (SND) process. This SND process is a result of the 2006 Rapanos v. U.S. Supreme Court (Rapanos) case, which enables EPA and Corps staff to use the SND logic (or just the threat of a formal Jurisdictional Determination) to lay a de facto claim to any tributary streams or adjacent wetlands, including the uppermost extent of dry ephemeral channels and wetlands near, but lacking direct connections to, WOTUS. In most cases, when jurisdiction is in question for a project, applicants relent to the EPA and Corps opinions before the case is subjected to a SND, because the SND process can be time-consuming, cumbersome, and expensive. Therefore in practice, the new rule may have less impact on streams than on ditches, artificial drainageways, and isolated wetlands.
EPA claims that the rule would improve clarity and certainty regarding CWA jurisdiction, and stated in press releases that “confusion has led some people not to apply for permits where in fact they must” and that the rule would extend CWA jurisdiction to an additional 20 million acres of wetlands and more than half of our nation’s streams. However, the inclusion of drainageways and “other waters” into the rule on the basis of any hydrological or ecological connections, not just “significant” connections, would depart drastically from the Rapanos plurality decision that only channels with “relatively permanent” flow should be jurisdictional under the CWA.
The Ditch Issue and CWA Exemptions
Once a ditch or other area is under federal CWA jurisdiction, modifications or disturbance (including routine maintenance) may be subject to CWA Section 404 permitting requirements. Unless the rule is revised and clarified, even constructed drainageways, swales, and similar surface flow conveyances would be considered jurisdictional unless it can be demonstrated that they are not connected to a WOTUS, and that they do not meet the definition of wetlands. This is problematic considering that in many non-arid regions, the recently revised methodology for wetland determination makes it relatively easy to classify even very small, seasonally saturated areas with opportunistic hydrophytic vegetation as wetlands.
The rule appears to lay the burden-of-proof on the applicant to prove a feature is not jurisdictional. Ditches are exempt from regulation under the rule and past Corps regulatory guidance letters if they: 1) are excavated in uplands, drain only uplands, and have less than perennial flow; and 2) do not contribute to flow, either directly or indirectly, to a WOTUS. Since most ditches are constructed to collect and transport runoff to a discharge point at a stream or wetland, only ditches that are wholly disconnected from a watershed and remain dry during most of the year are likely to qualify for these exemptions.
The original CWA also provided conditional exemptions for other activities, detailed at the links below, which are preserved with the new rule. However, use of these exemptions can be contentious in practice and subject to case-by-case evaluation that differs based on the regulatory climate within each Corps District and EPA Region. For more information, see:
- Activities exempted under by CWA Part 232.3 definitions
- More detailed explanation of CWA Section 404(f) exemptions
For example, many Corps reviewers have been apt to reject an exemption for “maintenance of drainage ditches” if vegetation and sediment had accumulated in a constructed channel or basin, on the rationale that this infrastructure was abandoned because of lack of routine maintenance, or if the ditch is in the vicinity of protected wildlife species habitat. The Corps Regulatory Guidance Letter 07-02 discusses ditch maintenance exemption in more detail.
Stormwater and Green Infrastructure Jurisdictional Claims
Stormwater treatment systems and other constructed water treatment systems were traditionally not claimed by the Corps because these systems are designed and maintained to satisfy Section 402 of the CWA (regarding point and non-point discharges and NDPES permitting), thus considered impractical to be regulated as jurisdiction WOTUS under Section 404.
Recently, however, some Corps Districts have already begun claiming stormwater channels and basins on the basis that they are either not regularly maintained or convey flow to/from a wetland or stream, and are thus de facto jurisdictional tributaries. This is a slippery slope; if the mere connection to a stream or wetland is sufficient to claim jurisdiction, rather than considerations of function and form, then most stormwater facilities could be subject to CWA Section 404 permitting requirements.
Additionally, green infrastructure (bioretention basins, rain gardens, vegetated swales, constructed wetlands, etc.) have been widely promoted by EPA and others as an effective solution for stormwater control, water quality, and other issues. Despite appeals by many stakeholders, the EPA and the Corps have declined so far to provide an explicit exemption for green infrastructure—which may have a chilling effect on its use.
What You Can Do to Reduce Exposure to the CWA Proposed Rule
Maintain your drainage ditches…or else! Maintain artificial drainageways by removing accumulated sediment and colonizing vegetation, and controlling fugitive runoff or seepage to prevent the area from meeting the definition of wetlands.
Retain documentation (e.g. design plans, permits, and maintenance records) for water conveyance systems, especially green infrastructure. This documentation may be proof to refute jurisdictional claims in the future and prove that features were excavated in, and drain only, uplands.
Where possible, design drainage controls so that they are “off-line” from the local watershed, and avoid controls that channelize or detain surface flows (e.g., curb/gutter elimination, infiltration, bioretention), to reduce exposure to CWA jurisdictional claims.
Remember, even though you design a system or have a permit, the EPA and the Corps may reevaluate in the future and determine that conditions have changed and your infrastructure is now subject to regulation.
If you have questions on if/how the new WOTUS rule may affect your facility, contact Jonathan Farrell at 412-977-1456 or email@example.com. If you require assistance inspecting and maintaining your stormwater system, contact Rick Celender at (412) 249-2309 or firstname.lastname@example.org. The EPA has established a website dedicated to public outreach at http://www2.epa.gov/cleanwaterrule. We recommend more reading at http://www.naco.org/legislation/Pages/WOUS.aspx.