June 26, 2009

The U.S. Environmental Protection Agency’s (EPA’s) Region 5 Weekly Activity report for the week of June 22, 2009 reported a settlement between the EPA and private parties for alleged filling of certain wetland area in northern Minnesota.  The settlement provides that the offending parties pay a civil penalty, implement a restoration plan and mitigate fill activities by the purchase of wetlands in other nearby areas.  The EPA described the case and settlement as follows:

United States Lodges Civil Consent Decree with JLG Enterprises, Jeffrey Gilbert and Gary Gilbert in U.S. District Court for the District of Minnesota Resolving Violations of Clean Water Act Section 404, including Unlawful Placement of Fill in Waters of the United States and 404 Permit Violations Occurring in Hermantown, Minnesota

 

On June 23, 2009, the United States lodged a civil consent decree resolving Clean Water Act Section 404 claims for penalties and injunctive relief, including restoration and mitigation, against JLG Enterprises (a Minnesota general partnership), JLG Enterprises of Hermantown, LLP, and these two entities’ general partners, Gary and Jeff Gilbert, for Clean Water Act violations involving the placement of fill in waters of the United States in connection with their residential development activities.  The unauthorized filling occurred on an area covered by a U.S. Army Corps of Engineers permit, and also on an area for which no permit application had been made.  The affected area consists of a developed residential subdivision known as Jackson Estates First Addition, and an area to the south and east which had been a black ash-forested mixture of wetland and upland and is known as Jackson Estates Second Addition.  On the latter area, which is the subject of EPA’s claim for relief, the United States would allege that approximately 7.76 areas of wetland were filled.  The two combined areas are in Hermantown, Minnesota, which is west of Duluth, and include wetlands that allegedly are adjacent to tributaries of Rocky Run Creek, which is a tributary to the Midway River, and the Saint Louis River, which in turn flows into Lake Superior.

 

Taking into account such factors as justice requires, the decree calls for, among other things: (1) payment of a $50,000 penalty according to an installment plan; (2) fill removal, reseeding/reforestation and hydrological monitoring of 2.36 acres of filled wetlands pursuant to a restoration plan; and (3) mitigation of 5.4 acres on the Second Addition area, including preservation and the purchase of mitigation credits according to an agreed schedule.  The decree is subject to a thirty-day public comment period.

 

Contacts: Tom M. Williams, Office of Regional Counsel, 312-886-0814; Yone Yu, Water Division, 312-886-2260”

 

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The views expressed here are my own and do not reflect the views of my employer, Hessian & McKasy. P.A.

 

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