Tag Archive for: discharge

TCEQ Says RV Resort Discharge Not Allowed by Permit

The TCEQ says discharges of sediment-laden stormwater are not allowed across public or private property under the terms of its Construction General Permit.

Two weeks ago, I photographed contractors at the Laurel Springs RV Resort construction site discharging silty stormwater from its detention pond into the wetlands and cypress ponds of Harris County’s Precinct 4 Edgewater Park.

stormwater runoff discharge
Photographed on Saturday, January 29. Laurel Springs RV Resort dug a trench through the southern wall of its undersized detention pond to discharge silty stormwater onto public property at top of frame.

Not long after that, I photographed them laying pipe in the trench to create a permanent conduit for stormwater into the park.

Response From Texas Commission on Environmental Quality

So, I emailed the photos to people at the TCEQ responsible for water quality, Stormwater Pollution Prevention Plans, and Construction General Permits. I asked if their permit allowed them to discharge silty stormwater into Edgewater Park. The short answer: NO.

Earl Lott, Director of the Water Quality Division of the TCEQ wrote back a lengthy email. In it, he concluded…

“…[their] general permit does not give the permittee the right to use private or public property for conveyance of stormwater and certain non-stormwater discharges…”

Earl Lott, Director, TCEQ, Office of Water

CGP Covers Activities During Construction, SWP3 Prior to Construction

Mr. Lott also noted that “Large construction site operators must comply with the conditions of the stormwater Construction General Permit (CGP) TXR150000 under the Texas Pollutant Discharge Elimination System (TPDES) Program. The CGP requires construction operators to control pollutants in stormwater during construction activities. Construction site primary operators that disturb greater than one acre of land are required to develop a Stormwater Pollution Prevention Plan (SWP3) and implement best management practices (BMPs) prior to construction activities beginning.” [Emphasis added.]

“As part of the SWP3,” Lott continued, “a description of BMPs used to prevent and reduce pollution in stormwater must be included and the BMPs must be inspected and evaluated to determine the effectiveness of controlling stormwater leaving the property.”

“The SWP3 must include a description of any sediment control practices used to remove eroded soils from stormwater runoff, such as a sedimentation basin. These controls must minimize sediment discharges from the site,” said Lott. [Emphasis added.]

So what did the Laurel Springs RV Resort’s SWP3 and Permit obligate them to do? For the full text of this 162 page document, click here. (14 Meg Download). The first have of this document includes the SWP3. The second includes the permit to discharge under the Texas Pollution Discharge Elimination System. There are many redundancies between the two. I’ll cover the SWP3 today and the Permit another day.

Concerns About SWPPP Plan

I want to make it clear that Mr. Lott’s comments related only to discharges of stormwater into Edgewater Park. However, after reading the RV Resort’s SWP3 and Permit, I have personal concerns listed below. The TCEQ may or may not share them. The TCEQ has up to 60 days from the date of an initial complaint to file a full report.

Based on my observations, contractor performance does not match contractor promises in the SWP3 in many cases. Also, several key elements of the plan were left blank. And some claims were just plain false, misleading or erroneous.

Below is a list of my concerns. You may find others.

  1. The plan is undated and appears never to have been revised even though it should have been.
  2. Clearing started in October. As Lott said, the contractor should have put pollution prevention measures in place before construction, but didn’t.
  3. Page 15 – The discussion of runoff coefficients is misleading. If sand comprised the top 18 inches of soil, water would not still be ponding on the site. We’ve had less than an inch of rain in the last 20 days. It would appear that the contractor overstated the potential for water to infiltration.
  4. Pages 16 and 17 – Construction schedule left blank.
  5. Page 18 – Says locations of support activities are included, but blanks not filled in.
  6. Page 18 – Says no wetlands have been found near site when adjoining property is full of them.
  7. Page 18 – Can’t see where they planned temporary erosion control measures during construction. Until yesterday, they had no silt fencing along the southern property line and still have no along the western property line.
  8. Page 18 – No source listed for fill materials. They have used Sprint Sand & Clay. But Sprint’s contract prohibits them placing fill in the 500-year flood plain. I have photographed the contractor spreading Sprint fill into the 500-year area.
  9. Page 22 – Contractor lists the size of the site as 20 acres and claims 20 acres are sandy loam. But then he says 20 acres out of 20 acres is 74%. Hmmmm. No wonder he has six tax forfeitures in his past.
  10. Page 22 – Contractor relied on USDA’s Natural Resources Conservation Service (NRCS) for soil data. But NRCS says its data is invalid for a site of this size. It falls below the limits of resolution for NRCS sampling.
  11. Page 34 – Before clearing, contractor failed to mark the southern property line. Employees then cut down a corridor of trees approximately 50 feet wide for a distance of about 750 feet. Contractor then piled dirt in corridor which eroded into Edgewater Park.
  12. Page 40 – I can see no measures in use to slow down velocity of sheet flow.
  13. Page 40 – I can see no temporary erosion controls in place on portions of the site where they are no longer working.
  14. Page 41 – Exits have been mud pits so vehicles have tracked dirt out of the site and spread it into streets where it washes into storm sewers.
  15. Page 41 – They have perimeter protection installed only along one side and have even bypassed that.
  16. Page 42 – No protection of storm sewer inlets until yesterday (about 5 months late).
  17. Page 42 – They claim a sediment basin would put public safety as risk, but don’t explain why.
  18. Page 42 – Contractor should have drained the detention pond through a 24 inch reinforced concrete pipe leading to the City’s storm sewer system, but chose to use the wetlands in Edgewater Park instead.
  19. Page 43 – Says discharge of standing water into a storm sewer will not be allowed, but residents have photographed them doing it.
  20. Page 43 – Covers vehicles tracking dirt out of the site. It requires stabilized construction entrances and/or regular street sweeping. This is basic “good housekeeping” stuff that has been in short supply since this construction site found the spotlight.
  21. Page 44 – Says “No discharges of Stormwater…will take places under this SWPPP.” See photos above.
  22. Page 45 – Says “Maintenance and repairs will be conducted within 24 hours of inspection report.” But only in the last two days has the contractor started removing eroded dirt from the county’s park caused by the discharge weeks ago.
  23. Page 45 – Says “Sediment will be removed from sediment fences … before it reaches 50% of the above ground height of the barrier.” Sediment was placed against the new southern silt fence that already exceeds that height.
  24. Section 8 on page 45 requires the contractor to select the most effective erosion control measures for specific site conditions from a page-long list of options. The contractor chose NONE.

How To Report Violations to the TCEQ

I urge residents who live close to the RV Resort to read the SWPPP and report additional violations/problems to the TCEQ if they see them.

Posted by Bob Rehak on 2/13/22

1629 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.

Triple PG Mine Appears to Violate Injunction

Triple P.G. Sand Development LLC appears to have violated provisions of an injunction by dredging before its trail and flooding neighboring properties with industrial waste water.

Texas Attorney General Ken Paxton is suing the mine for discharging millions of gallons of process wastewater into the headwaters of Lake Houston last year. On November 25th, 2019, the mining company (operated by a cardiologist from Nacogdoches, Tx., Prabhakar Guniganti, MD), agreed to the terms of a temporary injunction. Within days, his employees apparently started violating it.

Terms of Injunction

In part, the injunction stipulated that the defendant shall:

  • Not conduct any dredging operations at the Facility.
  • Not engage in any operations at its Facility that discharge process wastewater, nor shall Defendant engage in any operations at the Facility that produce process wastewater that must be discharged off Defendant’s property without express prior approval from TCEQ.
  • Immediately and permanently cease and prevent all discharges of any Industrial Waste and/or Process Wastewater from the Facility into or adjacent to waters in the state.
  • Not allow any discharge of water that is in or has ever been in the Facility’s Dredge Ponds without the express prior approval of TCEQ.

Aerial Photos Show Potential Violations

The aerial photos below show that within eight days of agreeing to the injunction, the mine started pumping process wastewater OVER BERMS into a pit that then overflowed onto the property of adjoining landowners and lands adjacent to White Oak Creek.

Before showing you the photos, let me show you a satellite image that helps illustrate the relationship between the different elements of this report.

Overview of mine, area drainage and adjoining properties in Montgomery County.
Note the location of the mine’s stockpile in the satellite photo above for orientation when viewing the photos below.
Brownish creek to right of mine is Caney Creek.
Blue line shows approximate path of White Oak Creek through forest.
Red oval shows adjoining properties in area of interest.
Solid red line shows ditch around perimeter of mine.
Green lines show approximate locations of breaches in Attorney General’s lawsuit.

The lot lines are from the Montgomery County Appraisal District Web Site. The properties within the red oval belong to multiple people or trusts. Guniganti owns the large forested areas outside the red oval and west of the mine. However…

Water pumped out of the mine’s wastewater pond is now flooding neighboring properties within the red oval that he does not own. The mine also dug a ditch around the perimeter of its property (solid red line) through dense forest that channels the process wastewater toward White Oak Creek (solid blue line) and the wetlands along it. It’s not clear, though, whether the wastewater has actually entered the creek yet; the forest canopy limits visibility. Regardless, the injunction says they can’t discharge waste adjacent to waters of the state.

No Flooding That Lasted Months of Adjoining Properties Until Injunction

None of the historical satellite images in Google Earth dating back to 1989 show flooding in the red oval. Some of the properties in the red oval lie in the 100-year flood plain. However, there has been no widespread flooding in this area since Imelda on September 19, 2019.

Nor has there been prolonged flooding as far as I can determine. Photos taken of this exact location on 9/27/2019, ten days after Imelda, show no flooding of the adjacent properties. Likewise, the property was not flooded on 9/14/2017, two weeks after Harvey. I can find no evidence that this area has ever flooded for months before.

Looking south toward stockpile in background. Properties in the forested strip do not belong to Guniganti. On 9/27/2019, ten days after Imelda, they showed no flooding.

For months, I’ve been watching waste water build higher and higher in the area above until it overflowed the pit and invaded neighboring properties. That made me curious and prompted a review of thousands of aerial photos. Here’s what I found.

Photos Taken In November Before Injunction Show Neighboring Land Still Not Flooded

The neighboring properties were NOT flooded on November 4, 2019 (before the injunction). Notice the level of water in the foreground pit – higher than after Imelda, but still waaaay short of overflowing.

Think of the November 4th photo below as the “before” shot. Compare it with other photos below taken from December through March 2020.

Properties in the red oval are between the pit in the foreground and stockpile in background. Note level of water in pit. Photo taken November 4, 2019, looking south. The mine’s process waste water enters the pit immediately to the left of the trees.

After Injunction, Mine Starts PUMPING Waste Water OVER Dike

Eight days AFTER the injunction, on December 3, 2019, I flew over the mine again. I noticed that the mine was pumping water out of its main waste water pond and into the pit in the photo above. But the pit had not yet overflowed. Here’s how the pumping looked. (Note: You can even see the pumping from outer space if you zoom in on this area within Google Earth and look at the Dec. 1 satellite image.)

Close up of pump taken on 12/3/2019. The pumping operation can also be seen in Google Earth satellite photo dated 12/1/19.

On January 20, Pumping Continues From Different Location

I flew over the mine again on January 20, 2020; the pumping from and into the same pits continued – but from a different location.

Looking West. Notice the line running from the arc in the wastewater pond (diagonally from center to lower right).
Looking south. The same line dumps water into the trench (bottom left). The trench then carries the water south (toward the top of the frame) to fill the pond next to the stockpile and flood adjoining properties with waste water.
Looking SE. Here’s what it looked like closer up. Notice the waste water extending into the tree line and ending at the stockpile (upper right). The same pond that had plenty of excess capacity in September and November was now overflowing.
Looking south. This wider shot shows the flooding wastewater curled around the stockpile and headed south into the woods where White Oak Creek flows toward the mine.
Looking SE. Close up of the waste water turning the corner around the stockpile.

From where you lose visibility of the ditch under the forest canopy to White Oak Creek is about 80 yards according to Google Earth.

Floodwaters Even Higher on February 13

On my February 13, 2020, overflight, I captured the following images. They show the floodwater had risen even higher and backed up farther.

Looking SW. On February 13th, the flooding wastewater appeared even higher.
Looking SE. It still curled down the ditch on the west (right) side of the mine and flowed into the woods toward White Oak Creek

Water backed up so far, it even flowed into the utility corridor at the north end of the mine.

Looking East. Water in utility corridor at north end of mine on February 13, 2020

In March, Possible Dredging Observed, Still Flooding Neighboring Properties

In March, one of the first things I noticed was the dredge. The cutterhead, which had been elevated for months, was now DOWN. That usually indicates the dredge is working. And that’s something the injunction prohibited.

Dredge with its cutter head down usually means active dredging.

The pond next to the waste water pit overflowed onto neighboring properties even more. It came right up to the road. Note the huge difference between the levels of the two ponds below.

Note how high the water level is in the pond at the top of the frame compared to the waste pit at the bottom.
Looking SW. Floodwaters stretch into adjoining properties. Stockpile is behind trees in upper left.
Looking SE. Floodwater still fills the ditch running south along west side of stockpile.
Looking NW at wastewater flooding adjoining properties. Stockpile is in lower left.
Looking SE. Adjoining properties are in tree strip in front of stockpile. Notice waste water among the trees.
Looking north from over stockpile toward vast area flooded with waste water.
Looking west. Even more of utility corridor is flooded in March.

Water In, Water Out

Miners use water to clean silt out of the sand before shipment. Note the damp sand coming off the conveyor belts.
Looking south. A river of waste water is seen leaving the processing equipment on March 6, 2020.
Looking NW. The silt-laden waste water even forms a delta in the waste pit. Flooded properties are on the other side of the road that cuts diagonally through the frame from middle left to upper right.

So water is leaving the processing equipment and going into the waste pit. It has to come in from somewhere. But where? As you can see from the photos below, the supply lines for the processing equipment come from the dredge pond.

Looking west. Water goes into the processing equipment from the dredge pond.
Looking North. Wide shot showing dredge with cutterhead down and discharge pipe leading back to shore.

In the shot above, you can see that the lowest pond in the whole operation is the pond receiving ALL the waste water. Why is that?

The Big Questions and Some Possible Answers

So it appears that the mine is pumping water out of the dredge pit, into the waste pit, and finally into the surrounding forest. The big questions are these.

  • Why is the mine keeping the level of the water in the waste pit so low?
  • Why is the mine flooding the surrounding forest and neighboring properties with industrial waste water?
  • Is the waste water polluting White Oak Creek?

To hypothesize some answers to those questions, let’s look at two pictures: the first from February and the second from March.

Looking south. February 20, 2020. Miners have been removing sand from area with all the tracks in the center and the big pond at the lower left.

From this one photo, we can see that to avoid dredging (per the injunction), the miners have started surface mining. But the level of mining is getting down to a) the water table, and b) the level of the waste pit.

Looking NW. March 6, 2020. Three weeks later, mining is now BELOW level of water in the waste pit.

Note the differing levels of water in the forest (top) and waste pit (middle). Also note that the level of the surface mining has now gone far below the level of sediment in the waste pond.

From this photo (and others in the series) we can conjecture what happened. Please note: I have no proof of this. It is only conjecture.

Theory for the Discharge

I suspect that the mine realized that if it were to continue filling orders while it waited for trial on June 22, 2020, it would need to start surface mining AND mine below the level of water in the waste pit. So, I’m guessing they started lowering the level of the pond to keep mining as long as possible.

I’m also guessing that the terms of the injunction and heightened scrutiny by the TCEQ meant they could no longer make excuses about discharging water into the creek. So they discharged into the forest instead…most of which Guniganti owns except for that strip north of the stockpile. If the discharge drained into White Oak Creek deep in the forest, at least it wouldn’t be visible.

Is Discharge Reaching White Oak Creek?

Is the waste-water pollution reaching White Oak Creek? Because of the dense forest canopy, that’s impossible to determine from the air. One could only tell from the ground. And because Guniganti owns all the land around the mine (except for the properties in the red circle), the only way to determine that would be by trespassing. That makes it impossible for ordinary citizens to spot any illegal discharge, such as Tony Buzbee did when he was running for Mayor of Houston. Fortunately, the TCEQ has the right to inspect the property from the ground if it suspects a violation of the restraining order. And they are investigating this.

Summary of Potential Violations

This whole affair once again raises questions about whether sand mines should be permitted in floodways. This mine actually sits at the confluence of TWO. Which is part of the reason why it was sued by the attorney general in the first place. Both Caney and White Oak Creeks captured the pit last year and the TCEQ estimates millions of gallons of process waste water were discharged without a permit into the headwaters of Lake Houston.

Meanwhile, Triple PG appears to be discharging again without the benefit of storms to blame the behavior on. They also appear to be violating terms of their injunction by:

  • Dredging
  • Discharging process wastewater
  • Producing process wastewater that had to be discharged off their property.
  • Discharging water that had been in the Facility’s Dredge Ponds.
  • Discharging Industrial Waste and/or Process Wastewater adjacent to waters of the state (White Oak Creek)

I have contacted the TCEQ twice already about whether they permitted any of these activities. They have not responded yet, citing the ongoing investigation. However, I must believe that had they permitted the activities, they would not be investigating and would have replied immediately. They visited the site yesterday.

Posted by Bob Rehak on March 13, 2020

927 Days after Hurricane Harvey and 176 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.

Liberty Materials Mine Carved Out of Many Wetlands

The Liberty Materials Mine in Conroe on the West Fork of the San Jacinto was cited last month for allegedly discharging 56 million gallons of wastewater loaded with up to 25 times the normal amount of sediment. When we look at the issue of sediment in the river and how it affects flooding, such breaches contribute to the problem. But it’s not just what such sand mines discharge. It’s also about what the wetlands they were carved from don’t hold back any more.

Before there was a Liberty Materials in Conroe, the area they now occupy contained many densely forested wetlands. Now there is nothing to slow down the water during heavy rains. Much more sand and sediment are exposed. And the wetlands are no longer there to filter it. It’s a double whammy. We get it coming and going.

Green areas mapped as wetlands in USGS National Wetlands Inventory. See descriptions below.

Before Liberty, Abundant Wetlands

Visually, it appears that wetlands once covered roughly half the area of this mine. But what was actually there?

US Geological Survey (USGS) and US Fish and Wildlife Service (USFWS) use a five character alpha-numeric code to classify wetlands. Liberty Materials operates in areas that were classified as PFO1A and PEM1A.

P stands for the class: Palustrine. Palustrine wetlands include any inland wetland that lacks flowing water. The word palustrine comes from the Latin word palus or marsh. Wetlands within this category include inland marshes, swamps and floodplains covered by vegetation.

The second two letters in each case stand for the subclass: FOrested or EMergent. Forested means it had broad-leaved, deciduous trees or shrubs taller than 6 meters. Emergent means it had aquatic plants.

These were areas that could store large volumes of water during floods. Plus, they had vegetation that could suck it up.

Trees Soak Up Water, Too

Trees can soak up 50 to 300 gallons of water in a day depending on their size, age and type. They send it back into the atmosphere; let’s use 100 gallons as a conservative average and do some simple math to calculate their contribution to flood reduction.

It’s difficult to estimate the number of trees per acre; it depends on the factors mentioned above plus more. But some people use 500 trees per acre as a good average for estimating purposes.

The Liberty sand mine complex comprises more than a thousand acres. That’s 500,000 trees each soaking up 100 gallons of water per day. Or 50 million gallons of water per day.

That’s about the same amount that the TCEQ estimates the Liberty Mine discharged downstream in one breach.

Personally, I’d rather have the trees and wetlands than white water and a river that’s so silted up it contributes to flooding.

Influence of Wetlands on Flooding

Imagine a sand box that’s 1.5 miles wide and 2.5 miles long. Here’s what it looked like the day after the peak of Hurricane Harvey.

Image from 8/30/2017 of Liberty Mine one day after the peak of Harvey.

And here’s why. Note how closely the extend of flooding matches the extent of the flood plains. Like almost all mines on the West Fork, this one lies substantially within the floodway and floodplain.

Cross-hatched = floodway; aqua = 100 year; tan = 500 year floodplain.

Is Liberty’s Luck Running Low?

If these people had the strongest dikes in the world, maybe you could cut them some slack. But they don’t. They breach repeatedly.

About a month after allegedly discharging 56 million gallons of process wastewater into the West Fork, the only thing holding back another discharge at the Liberty Mine is a couple feet of sand. Photo taken on 12/3/2019.

We need sand, but not at the expense of floods and the environment. Maybe it’s time for TACA to run some of its members out of Texas. That do-good routine they stage in Austin every other year could be in jeopardy with members like Liberty. See below.

11/4/2019. The Day the West Fork Turned White. Confluence of Spring Creek and West Fork. TCEQ alleges that Liberty Mines discharged 56 million gallons of white waste water into the West Fork.

Posted by Bob Rehak on 12.5.2019

828 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.

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.

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.

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:

  • Require violators to promptly correct violations
  • Remedy harm caused by violations
  • 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.

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:

  • 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.

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.