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PROACTIVELY PERMITTING AROUND WETLANDS, ENDANGERED SPECIES, AND CULTURAL RESOURCES

 

editorial_legal_finace February 2015
PROACTIVELY PERMITTING AROUND WETLANDS, ENDANGERED SPECIES, AND CULTURAL RESOURCES
By: Walter Veselka, Member of AllStar Ecology, LLC
     

AllStar Ecology LLC (ASE) is a specialty, environmental niche company founded in
the infancy of Marcellus and Utica drilling (2007) by a group of natural resource
professionals who saw the immense value in shale gas. By understanding the
construction process, ecology, and the regulatory environment, we save clients’
money by pro-actively addressing challenges. Since its inception, ASE has performed
consulting services including wetland / stream delineations, endangered species and
cultural resource surveys, and mitigation / restoration projects on over 40,000 acres
and permitted over 700 sites in the Marcellus and Utica region.

 

Introduction
No one could have imagined ten years ago how the Marcellus and Utica plays have re energized rural parts of West Virginia, Ohio and Pennsylvania. The turn-around has been nothing short of an amazing fairy tale for generational farmers, old gas stations at county road intersections, and other stakeholders along the value chain including those that fill their tanks on American oil at the pumps (and hopefully soon at CNG stations).

Many outside the industry criticize the environmental signature of natural gas operations; however there are a number of laws and ordinances that influence the shape and pace of infrastructure build-out (from pad design, to staging areas, and pipeline and waterline routing). No matter where people are working in the country, there are three main Federal laws that can influence the placement of natural gas infrastructure: the Clean Water Act, Endangered Species Act, and National Historic Preservation Act. In the regulatory context, we can think of these laws being meant to guide the process of oil and gas field development so ‘downstream’ users can still receive the benefits of natural gas without compromising public resources of the American people.

 

Clean Water Act
The Clean Water Act (CWA) is the driving force ensuring that no private entity degrades the ‘biological, chemical, or physical’ characteristics of a waterbody. As interpreted, this includes all seasonal streams and wetlands that have connections (via proximity, adjacency, or even if through a culvert) to downstream waters that carry commerce. This protection extends beyond the presence of water itself to the stream banks, floodplains, and low spots that qualify as wetlands. This is where the functions occur that the CWA is meant to protect: cleaning the water, storing it, and recharging aquifers – thus benefitting the downstream users.

 legal_finance1_feb2015 The regulatory agency responsible for protecting water resources is the Army Corps of Engineers. They review permits and approve them after seeing companies have taken steps to avoid aquatic resources, and if not possible then minimize and mitigate impacts to aquatic resources (restore or create new streams or wetlands to replace the ones impacted). 

 Most oil and gas impacts are covered under Nationwide Permits designed to streamline permitting, by proactively addressing and meeting the CWA requirements for both the state and Federal regulatory agencies for small and common impacts. To ensure compliance, the Clean Water Act allows for the Corps to follow up with state environmental agencies or the US Fish and Wildlife Service (under the Endangered Species Act) or State Historical Preservation Offices (under the National Historic Preservation Act) to verify coordination was conducted prior to construction. The penalty for non-compliance with the CWA is steep and often includes EPA ordered consent decrees and 7-digit fines.


Endangered Species Act

In Marcellus and Utica country, tree clearing within potential bat habitat and stream crossings in the vicinity of known freshwater mussel populations are the most over looked challenges that can rise up and derail a construction schedule. The Endangered Species Act (ESA) protects the habitat of species and entrusts the US Fish and Wildlife Service to issue site by site guidance to allow for the construction activities to take place without harming an endangered species. Without foresight, this guidance often requires design changes, delaying project kick-offs, and costing producers and operators time and money.

Support it or not, bats and freshwater mussels are protected species. People in America find value in these species and under the ESA their existence shouldn’t be jeopardized for private enterprise. Indiana bats and the likely soon-to-be listed Northern Long Eared bats populations are severely diminished due to habitat loss and white-nosed syndrome. This disease weakens the immune systems of bats, is highly infectious, and decimates hibernating populations over the winter. The ESA calls for the protection of bat habitat, which includes caves for hibernating in winter and trees for summer roost habitat. This is why extensive tree clearing is typically conducted in winter months.  Freshwater mussels were first harvested around the turn of the century to make ‘pearl button’ shirts. Since that time, increases in agricultural and other activities has increased sediment in rivers, further degrading habitat. As pipelines traverse the landscape, each crossing of a mussel stream requires an upstream and downstream survey with relocation of any mussels found in the impact area.

The hardship posed to the oil and gas industry in dealing with these species is not exclusive. The listing of the northern long eared bat has the potential to cripple the pulp and paper industry from Maine to Wisconsin. Freshwater mussels effect highway department bridge repair, coal loading facilities, and even bank stabilization projects to protect infrastructure along rivers as big as the Ohio. However, a service provider that specializes in these permitting challenges can work with its clients to plan pro-actively. In some cases, completed required surveys are good for variable number of years depending on the resource and regulatory agency.


National Historic Preservation Act

We have a rich, cultural history in America that future generations deserve the right to study and learn about. The National Historic Preservation Act (NHPA) is designed to protect historic and culturally important resources for future generations. Based on the legal definition, historic artifacts can include items from as recent as 1965 (50 years or older). In Appalachia, properties are bought and sold with old barns and out-buildings from before 1965, which may require consideration and an evaluation under the NHPA. With proper planning and coordination with State Historic Preservation Offices (SHPO), the presence of prehistoric Native American artifacts, old buildings, and examples of architecture will not render a site off-limits. These sites can be assessed and documented so that any conflicts are resolved prior to a permit being issued.


The Wrap-Up

The Clean Water Act, Endangered Species Act, and National Historic Preservation Act are Federal laws that together with a multitude of state and local regulations will influence oil and gas design, timelines, and profitability throughout the United States. Simply put, they are part of the cost of doing business in America. Working with a company that understand the federal, state and local regulations and employs local people with knowledge of the area goes a long way in staying in compliance. Laws are not static – especially state and local regulations – so a local and regional consultant that is intimately involved in the Marcellus and Utica plays is of paramount importance. Being pro-active can actually help producers and midstream operators save money on environmental rules and regulations by tackling them up front thus eliminating the potential remediation costs and associated penalties.

 

For more information, please contract Greg Short, Member, at Greg@AllStarEcology.com or 304 216 5690

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