EPA conducted two site inspections on December 11, 2011, and March 28, 2012. Section 404 of the CWA requires persons wishing to discharge fill material into wetlands or streams to obtain a permit from the U.S. Army Corps of Engineers (Corps). In this case, the company failed to apply for or receive a Section 404 permit. In addition, information subsequently provided by the company revealed more violations along the course of two pipelines that will ultimately transport gas extracted by the company.
Unpermitted activities included the filling, relocating, and placement of culverts in streams and the filling of wetlands. The violations at the four sites resulted in adverse impacts to nearly an acre of emergent and forested wetlands. There are permanent impacts to more than 1,500 linear feet of stream, and temporary impacts to more than 3,000 linear feet of streams. Mitigation for the wetland and stream impacts includes a combination of restoration, mitigation, and the purchase of wetland credits from a mitigation bank. The affected wetlands and streams ultimately flow into the West Fork River, which is part of the Monongahela River Basin.
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Wetlands are a scarce resource in West Virginia, occupying less than 0.4 percent of West Virginia’s land surface area. According to EPA, since 1780, more than 24 percent of West Virginia’s wetlands have been lost. Wetlands are vital to protecting the integrity of rivers and estuaries by providing a natural filtration system for pollution before it gets into rivers, lakes, and ponds, and by preventing flooding after storms. They also provide important fish and wildlife habitat. While progress has been made in recent years to reverse the trend, wetlands continue to be threatened.
The streams involved in this case were mostly headwater streams, the small creeks and streams that are the origin of most rivers. Headwater streams function to store floodwater, reduce sediment, and provide an important source of freshwater dilution to downstream waters.
The company is headquartered in West Virginia and is a joint venture between the company and a private equity firm. It was formed to explore and develop Marcellus Shale gas deposits.
As part of the settlement, the company did not admit to violating the CWA.
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Dredge and Fill Permits
Similar to violations of other parts of CWA, violations of Section 404 wetland permit requirements may result in severe penalties. The Corps is the administering and enforcement agency subject to EPA review. The Corps may bring an action to compel the restoration of areas that have been filled without obtaining the required permit or dredged in violation of permit conditions.
This company paid a $177,500 penalty, but CWA violations of dredging and fill permits from the Corps can be up to $25,000 per day, per violation.
See tomorrow’s Advisor for a quick guide to CWA penalties.