The Army Corps of Engineers has acknowledged that neither Perry Homes, its subsidiaries nor its contractors sought a “jurisdictional determination” before filling the wetlands at the Woodridge Village construction site. Further, the Corps is now investigating whether those wetlands do fall within its jurisdiction and would have required a permit to fill.
We are a long way from determining whether there was any wrongdoing in that case and I am not alleging any.
But, in general, what could possible penalties be in wetlands cases and how are they determined? Several documents found on the EPA website give insight into how they think and assess penalties. Below is a summary plus links to the documents and several additional useful pages on the EPA enforcement website.
Corps and EPA Share Responsibility for Enforcement
The Corps of Engineers and EPA share responsibility for enforcing Section 404 of the Clean Water Act, which covers wetlands. Both civil and criminal penalties can apply to wetlands violations depending on circumstances. This page on the EPA’s site explains the shared authority.
Goals of Enforcement Program
EPA’s Section 404 enforcement program has three goals:
Protect the environment and human health and safety
Deter violations
Treat the regulated community fairly and equitably.
Factors Considered in Initiating an Enforcement Action
A wide variety of factors determine whether EPA initiates an enforcement action. They include:
Amount of fill
Acres of wetlands filled
Environmental significance
Discharger’s compliance history
Largest Criminal Action in EPA History
At one end of the spectrum, you have criminal cases. Since enactment of the Clean Water Act, EPA and the Corps have used their criminal enforcement authorities sparingly, only for the most flagrant and egregious Section 404 violations. The most significant case ever:
On February 25, 2005 in the Southern District of Mississippi, a jury convicted Robert J. Lucas, Jr., his daughter, Robbie Lucas Wrigley, and his engineer, M.E. Thompson, Jr., on all 41 counts of an indictment which charged violations of Sections 402 and 404 of the Clean Water Act, mail fraud and conspiracy.
Lucas developed and sold hundreds of lots in the Big Hill Acres subdivision that impacted approximately 260 acres of wetlands without Corps of Engineers’ permits.
In developing the lots, Lucas filled wetlands for the construction of driveways and septic systems. The construction persisted after Lucas was ordered to desist by EPA and other agencies.
Wrigley sold lots and otherwise participated in the conspiracy knowing that the lots were saturated and could not support septic systems.
M.E. Thompson, a professional engineer, wrongfully certified that the lots were suitable for septic systems, even after being told by the local health department to the contrary.
In December 2005, the District Court sentenced Lucas to 108 months in prison and Wrigley and M.E. Thompson, Jr. to 87 months apiece. The court fined each of the Defendants $15,000, assessed restitution of $1,407,400 for each Defendant and fined Lucas’s two companies Big Hill Acres, Inc., $4,800,000 and Consolidated Investments, Inc., $500,000.
The case represents the most significant criminal wetlands case in the history of the Clean Water Act.
The Decision was affirmed on appeal and the Supreme Court refused to consider it.
Factors Considered in Assessing Fines
At the other end of the spectrum, you have civil penalties with fines that can range from slaps-on-the-wrist to substantial.
Recover any economic benefit that accrued to violators, thereby assuring a level playing field for those who obey the law
Deter future violations
Promote fair and equitable treatment nationwide
Promote expeditious resolution (fast settlement)
Section 309 (d) of the CWA sets penalty factors for judges to use when determining the appropriateness of civil penalties.
Seriousness of violations
Economic benefit resulting from violations
History of violations
Good faith efforts to comply
Economic impact on violators
Other matters as justice may require
They refer cases to the Department of Justice when court ordered injunctive relief is necessary to remedy a violation, or when the violator has failed to comply with an administrative compliance order or consent order.
Formula Used in Assessing Fines
When calculating minimum settlement penalties, they use the following formula.
This determines the minimum penalty amount that the government will accept in the settlement of a case, in other words, “the bottom-line penalty” amount.
Economic Benefit Component Explained
Persons who violate the CWA by discharging dredged and/or fill material without Section 404 permit authorization or in violation of a permit may have obtained an economic benefit by obtaining an illegal competitive advantage (“ICA”), or as the result of delayed or avoided costs, or by a combination of these or other factors.
The objective of calculating and recovering economic benefit is to place violators in no better financial position than they would have been had they complied with the law.
Gravity Component Explained
The “gravity” component of the calculation considers whether the discharge endangers the health and welfare of persons. The greater the threat, the higher the weight. If the discharge has resulted in an imminent and substantial endangerment, they will apply the highest value for this factor.
Other Considerations
Secondary or Off-Site Impacts such as the extent to which discharges caused erosion and downstream sedimentation problems are considered.
Judges also consider the duration of violation. That’s the length of time that fill material has remained in place. Generally, the longer the duration, the higher the weight assigned to this factor.
Judges can also apply a Recalcitrance Adjustment Factor. The “recalcitrance” factor may be used to increase the penalty based on a violator’s bad faith, or unjustified delay in preventing, mitigating, or remedying the violation in question.
As distinguished from culpability, recalcitrance relates to the violator’s delay or refusal to comply with the law, to cease violating, to correct violations, or to otherwise cooperate with regulators.
Classes of Penalties
Section 309(g) of the Clean Water Act establishes two classes of administrative penalties. They differ with respect to maximum assessment for violations.
A Class I penalty may not exceed $11,000 per violation, or a maximum amount of $27,500.
A Class II penalty may not exceed $11,000 per day for each day during which the violation continues, or a maximum amount of $137,500.
EPA may also seek:
Injunctive relief
Criminal penalties (fines and/or imprisonment),
Civil penalties through judicial action.
Criminal Vs. Civil
When the Agency refers cases to the Department of Justice (DOJ) for civil and/or criminal enforcement under Section 309(d), EPA may seek civil penalties of up to $27,500 per day for CWA violations including the unauthorized discharge of fill.
Criminal prosecution in wetlands cases usually involves someone who knowingly or negligently discharges fill, makes false or misleading statements on permit applications, or endangers other people.
For More Information and Exact Text
The discussion above summarizes 32-pages of technical/legal EPA and Army Corps documents. I urge you to consult the sources directly for their exact wording.
The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.
https://i0.wp.com/reduceflooding.com/wp-content/uploads/2019/11/Corps-and-EPA.jpg?fit=800%2C697&ssl=1697800adminadmin2019-11-17 21:25:442019-11-17 22:08:56Possible Penalties for Wetlands Violations
Rumors of a Ben’s Branch agreement between Bear Branch Trail Association, Friendswood and Harris County Flood Control District have circulated for weeks. On Wednesday, November 13, 2019, the deal became official when Diane Trautman, the Harris County Clerk, recorded the easement. Here is exactly what the easement does and doesn’t allow the various parties to do along Ben’s Branch.
Ben’s Branch below St. Martha’s Catholic School is characterized by hairpin turns and trees growing right down to and into the stream.
49-Page Ben’s Branch Easement Finally Signed
The easement is like a contract that spells out the rights, obligations and limitations of each party.
Bear Branch Trail Association Rights and Obligations
This is an agreement between three parties that modifies the original deed of gift between Friendswood and the Bear Branch Trail Association (BBTA).
BBTA:
Gives Harris County Flood Control the right to operate in an area 100 feet wide, 50 feet on either side of the creek’s centerline.
Retains the right to maintain and operate existing trails, bridges, low water crossings.
May construct, install, maintain and operate new trails in the easement area as long as they don’t obstruct water flow, cause erosion or hinder HCFCD’s “de-snagging” efforts. De-snagging is the removal of trees that have fallen or are falling into the creek.
Must share plans for new trails, bridges, etc. with HCFCD and HCFCD must approve them before any construction begins.
Acknowledges that HCFCD equipment may damage trails and agrees not to hold HCFCD liable for repairs.
Remains solely responsible for the safe condition and maintenance within the easement area and for repairs to any damage.
This low water crossing north of Bear Branch Elementary may not be removed according to the terms of the easement.Some observers have noted trees “spearing” into the narrow culverts and backing water up.But HCFCD cuts trees into small enough sections to let them pass through such openings.
Harris County Flood Control Rights and Obligations
HCFCD may:
Perform de-snagging operations related to flood control and drainage.
Clear, cut, drop, stack and stockpile trees, shrubs, vines, and vegetation for the sole purpose of flood control.
Grade and stabilize banks to protect against erosion and maintain drainage.
Plant grass, or use rip rap or man-made materials to reduce bank erosion.
Trees constantly fall into Ben’s Branch because of bank erosion. When floating trees catch on other trees or roots during floods in the narrow channel, they can form “beaver dams” that back water up into adjoining streets, homes and businesses.
HCFCD can/will NOT:
Widen, deepen, enlarge, straighten or smooth the channel in such a way as to increase channel capacity.
Maintain or repair trails or bridges, but may repair erosion that threatens them.
HCFCD has no responsibility to repair or replace storm sewer outfalls or to repair erosion around them.
Friendswood Agrees to All of Above Plus…
Friendswood agrees to all of the above. Friendswood also agrees that the terms of the easement will not trigger the automatic reversion of ownership from BBTA to Friendswood that the original deed of gift specified.
Signatories
John Hammond of Friendswood signed the easement on Monday, November 11, 2019.
Kathryn Palmer, president of BBTA signed it on Tuesday, November 12, 2019.
Diane Trautman, the Harris County Clerk signed and recorded it on November 13, 2019.
Roadblocks to Flood Control Maintenance Now Removed
This means that Flood Control can now begin de-snagging and other maintenance activities within 50 feet of either side of Ben’s Branch. The area affected lies between Woodland Hills Drive and Kingwood Drive.
Geographic Limitations
North Park, Woodland Hills, Kingwood Drive and West Lake Houston Parkway define the boundaries of BBTA.
Other community and commercial associations control the creek outside of those boundaries. But those areas are already channelized and maintained by HCFCD for the most part.
Note: Those who don’t live within these boundaries may be confused by the names. Ben’s Branch is the name of the creek that runs through Bear Branch Village, Kings Forest and Hunters Ridge. The Bear Branch Trail Association overlaps all three of the community associations, but technically has nothing to do with them. BBTA is solely responsible for the greenbelts and greenbelt trails. It has nothing to do with swimming pools or deed restrictions. This can differ in other parts of Kingwood.
Compromise Between Natural Aesthetics and Flood-Risk Reduction
Everyone should realize that this easement represents a compromise. Any loss of natural aesthetics is the price of reducing flood risk to their neighbors. The three parties worked on this for more than a year.
Parts of the greenbelt will be thinned out, but you shouldn’t see wholesale widening of the creek into a massive channel. As a consequence, people who live along the creek should realize that this doesn’t offer the highest degree of flood protection. But it does help protect both greenbelts and property owners much more than before.
St. Martha Catholic School, Kids In Action, and homes on either side of the creek that flooded should be optimistic about this agreement.
The densely forested nature of the preserve along each side of the creek will look less dense. However…
The Ben’s Branch greenbelt is a minimum of 300 feet wide. In most places, it’s 400-600 feet wide. And in some places, it measures as much as 800 feet wide. This agreement affects only 100-feet.
Thus, two-thirds to seven-eighths of the natural area will remain the way it looks now. That sounds like a reasonable price to pay for helping to protect neighbors and property values in the entire neighborhood.
Posted by Bob Rehak on 11/17/2019
810 Days since Hurricane Harvey and 59 since Imelda
The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.
https://i0.wp.com/reduceflooding.com/wp-content/uploads/2019/11/RJR_3839.jpg?fit=1500%2C1000&ssl=110001500adminadmin2019-11-16 21:17:222019-11-16 21:19:06Text of Ben’s Branch Agreement Between Bear Branch Trail Association, Friendswood and HCFCD
Harris County Flood Control District (HCFCD) has demolished more bought-out townhome complexes in Forest Cove in the last few weeks. Contractors leveled the areas circled in white below and carried away the debris.
That means HCFCD has removed approximately 40% of the total units already.
According to Flood Control, buyouts in a situation like Forest Cove are complex. They can take longer than normal because HCFCD must close on EACH unit in a complex before they can demolish ANY.
Going, Going, Gone
Architects designed the lower floors of these units to flood. But during Harvey, water reached well into the second floors.
Residents once labored over homes now reduced to rubble.They could soon make way for a linear park, being proposed by the City of Houston Parks Board.
Future Plans for Area
When HCFCD completes the buyouts and demolition process for each complex, the area will revert to some kind of green space. It could return to nature or it could turn into a park. The Houston Parks Board has made several presentations to KSA and the Forest Cove Property Owners Association about building a linear park. The park would connect the Kingwood Trail Network to the Spring Creek Greenway via the Bevil Jarrell Memorial pedestrian bridge over the San Jacinto River.
From Buyouts to Beautiful
If the Parks Board, City and Harris County can pull this off, it would turn a negative into a positive. I don’t mean to disrespect the memories of the proud people who once carved out beautiful lifestyles near the river. But since Harvey, the flood-ravaged townhomes became a haven for looters, squatters, graffiti artists and illegal dumpers. It’s best to let go of the memories and move on at this point. HCFCD has a process for turning areas like this into recreational amenities.
Posted by Bob Rehak on 11/16/2016
809 Days since Hurricane Harvey
https://i0.wp.com/reduceflooding.com/wp-content/uploads/2019/11/FC-Townhome-Demo-1.jpg?fit=1500%2C1125&ssl=111251500adminadmin2019-11-16 15:06:452019-11-16 15:06:57HCFCD Demolishes More Townhomes in Forest Cove
Possible Penalties for Wetlands Violations
The Army Corps of Engineers has acknowledged that neither Perry Homes, its subsidiaries nor its contractors sought a “jurisdictional determination” before filling the wetlands at the Woodridge Village construction site. Further, the Corps is now investigating whether those wetlands do fall within its jurisdiction and would have required a permit to fill.
But, in general, what could possible penalties be in wetlands cases and how are they determined? Several documents found on the EPA website give insight into how they think and assess penalties. Below is a summary plus links to the documents and several additional useful pages on the EPA enforcement website.
Corps and EPA Share Responsibility for Enforcement
The Corps of Engineers and EPA share responsibility for enforcing Section 404 of the Clean Water Act, which covers wetlands. Both civil and criminal penalties can apply to wetlands violations depending on circumstances. This page on the EPA’s site explains the shared authority.
Goals of Enforcement Program
EPA’s Section 404 enforcement program has three goals:
Factors Considered in Initiating an Enforcement Action
A wide variety of factors determine whether EPA initiates an enforcement action. They include:
Largest Criminal Action in EPA History
At one end of the spectrum, you have criminal cases. Since enactment of the Clean Water Act, EPA and the Corps have used their criminal enforcement authorities sparingly, only for the most flagrant and egregious Section 404 violations. The most significant case ever:
Factors Considered in Assessing Fines
At the other end of the spectrum, you have civil penalties with fines that can range from slaps-on-the-wrist to substantial.
This document explains how the agencies determine penalties. They use multiple factors, each with weighting, that are fed into a formula. EPA designed the formula to:
Section 309 (d) of the CWA sets penalty factors for judges to use when determining the appropriateness of civil penalties.
They refer cases to the Department of Justice when court ordered injunctive relief is necessary to remedy a violation, or when the violator has failed to comply with an administrative compliance order or consent order.
Formula Used in Assessing Fines
When calculating minimum settlement penalties, they use the following formula.
Penalty = Economic Benefit + (Preliminary Gravity Amount +/- Gravity Adjustment Factors) – Litigation Considerations – Ability to Pay – Mitigation Credit for Supplemental Environmental Projects
This determines the minimum penalty amount that the government will accept in the settlement of a case, in other words, “the bottom-line penalty” amount.
Economic Benefit Component Explained
Persons who violate the CWA by discharging dredged and/or fill material without Section 404 permit authorization or in violation of a permit may have obtained an economic benefit by obtaining an illegal competitive advantage (“ICA”), or as the result of delayed or avoided costs, or by a combination of these or other factors.
The objective of calculating and recovering economic benefit is to place violators in no better financial position than they would have been had they complied with the law.
Gravity Component Explained
The “gravity” component of the calculation considers whether the discharge endangers the health and welfare of persons. The greater the threat, the higher the weight. If the discharge has resulted in an imminent and substantial endangerment, they will apply the highest value for this factor.
Other Considerations
Secondary or Off-Site Impacts such as the extent to which discharges caused erosion and downstream sedimentation problems are considered.
Judges also consider the duration of violation. That’s the length of time that fill material has remained in place. Generally, the longer the duration, the higher the weight assigned to this factor.
Judges can also apply a Recalcitrance Adjustment Factor. The “recalcitrance” factor may be used to increase the penalty based on a violator’s bad faith, or unjustified delay in preventing, mitigating, or remedying the violation in question.
As distinguished from culpability, recalcitrance relates to the violator’s delay or refusal to comply with the law, to cease violating, to correct violations, or to otherwise cooperate with regulators.
Classes of Penalties
Section 309(g) of the Clean Water Act establishes two classes of administrative penalties. They differ with respect to maximum assessment for violations.
A Class I penalty may not exceed $11,000 per violation, or a maximum amount of $27,500.
A Class II penalty may not exceed $11,000 per day for each day during which the violation continues, or a maximum amount of $137,500.
EPA may also seek:
Criminal Vs. Civil
When the Agency refers cases to the Department of Justice (DOJ) for civil and/or criminal enforcement under Section 309(d), EPA may seek civil penalties of up to $27,500 per day for CWA violations including the unauthorized discharge of fill.
For More Information and Exact Text
The discussion above summarizes 32-pages of technical/legal EPA and Army Corps documents. I urge you to consult the sources directly for their exact wording.
Other useful links, for those seeking even more information, include:
Posted by Bob Rehak on 11/18/2019
811 Days since Hurricane Harvey
The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.
Text of Ben’s Branch Agreement Between Bear Branch Trail Association, Friendswood and HCFCD
Rumors of a Ben’s Branch agreement between Bear Branch Trail Association, Friendswood and Harris County Flood Control District have circulated for weeks. On Wednesday, November 13, 2019, the deal became official when Diane Trautman, the Harris County Clerk, recorded the easement. Here is exactly what the easement does and doesn’t allow the various parties to do along Ben’s Branch.
49-Page Ben’s Branch Easement Finally Signed
The easement is like a contract that spells out the rights, obligations and limitations of each party.
Here is the complete text of the 49-page document. Below is a summary.
Bear Branch Trail Association Rights and Obligations
This is an agreement between three parties that modifies the original deed of gift between Friendswood and the Bear Branch Trail Association (BBTA).
BBTA:
Harris County Flood Control Rights and Obligations
HCFCD may:
HCFCD can/will NOT:
HCFCD has no responsibility to repair or replace storm sewer outfalls or to repair erosion around them.
Friendswood Agrees to All of Above Plus…
Friendswood agrees to all of the above. Friendswood also agrees that the terms of the easement will not trigger the automatic reversion of ownership from BBTA to Friendswood that the original deed of gift specified.
Signatories
John Hammond of Friendswood signed the easement on Monday, November 11, 2019.
Kathryn Palmer, president of BBTA signed it on Tuesday, November 12, 2019.
Diane Trautman, the Harris County Clerk signed and recorded it on November 13, 2019.
Roadblocks to Flood Control Maintenance Now Removed
This means that Flood Control can now begin de-snagging and other maintenance activities within 50 feet of either side of Ben’s Branch. The area affected lies between Woodland Hills Drive and Kingwood Drive.
Geographic Limitations
North Park, Woodland Hills, Kingwood Drive and West Lake Houston Parkway define the boundaries of BBTA.
Other community and commercial associations control the creek outside of those boundaries. But those areas are already channelized and maintained by HCFCD for the most part.
Note: Those who don’t live within these boundaries may be confused by the names. Ben’s Branch is the name of the creek that runs through Bear Branch Village, Kings Forest and Hunters Ridge. The Bear Branch Trail Association overlaps all three of the community associations, but technically has nothing to do with them. BBTA is solely responsible for the greenbelts and greenbelt trails. It has nothing to do with swimming pools or deed restrictions. This can differ in other parts of Kingwood.
Compromise Between Natural Aesthetics and Flood-Risk Reduction
Everyone should realize that this easement represents a compromise. Any loss of natural aesthetics is the price of reducing flood risk to their neighbors. The three parties worked on this for more than a year.
Parts of the greenbelt will be thinned out, but you shouldn’t see wholesale widening of the creek into a massive channel. As a consequence, people who live along the creek should realize that this doesn’t offer the highest degree of flood protection. But it does help protect both greenbelts and property owners much more than before.
St. Martha Catholic School, Kids In Action, and homes on either side of the creek that flooded should be optimistic about this agreement.
The densely forested nature of the preserve along each side of the creek will look less dense. However…
Thus, two-thirds to seven-eighths of the natural area will remain the way it looks now. That sounds like a reasonable price to pay for helping to protect neighbors and property values in the entire neighborhood.
Posted by Bob Rehak on 11/17/2019
810 Days since Hurricane Harvey and 59 since Imelda
The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.
HCFCD Demolishes More Townhomes in Forest Cove
Harris County Flood Control District (HCFCD) has demolished more bought-out townhome complexes in Forest Cove in the last few weeks. Contractors leveled the areas circled in white below and carried away the debris.
That means HCFCD has removed approximately 40% of the total units already.
According to Flood Control, buyouts in a situation like Forest Cove are complex. They can take longer than normal because HCFCD must close on EACH unit in a complex before they can demolish ANY.
Going, Going, Gone
Architects designed the lower floors of these units to flood. But during Harvey, water reached well into the second floors.
Future Plans for Area
When HCFCD completes the buyouts and demolition process for each complex, the area will revert to some kind of green space. It could return to nature or it could turn into a park. The Houston Parks Board has made several presentations to KSA and the Forest Cove Property Owners Association about building a linear park. The park would connect the Kingwood Trail Network to the Spring Creek Greenway via the Bevil Jarrell Memorial pedestrian bridge over the San Jacinto River.
From Buyouts to Beautiful
If the Parks Board, City and Harris County can pull this off, it would turn a negative into a positive. I don’t mean to disrespect the memories of the proud people who once carved out beautiful lifestyles near the river. But since Harvey, the flood-ravaged townhomes became a haven for looters, squatters, graffiti artists and illegal dumpers. It’s best to let go of the memories and move on at this point. HCFCD has a process for turning areas like this into recreational amenities.
Posted by Bob Rehak on 11/16/2016
809 Days since Hurricane Harvey