EPA v. HARDIN COUNTY DEVELOPERS INC.

Case summary

8/29/2011 - CONSENT AGREEMENT AND COMPLIANCE ORDER ISSUED. THIS ORDER PERTAINS TO THE DEPOSITION OF DREDGED AND/OR FILL MATEIRAL INTO JURISDICTIONAL WATERS OF THE U.S., INCLUDING THE PLACEMENT OF A CULVERT AND EARTHEN DAM AND THE MASS GRADING OF APPROX 1,993 FEET OF TWO UNNAMED TRIBUTARIES TO BRUSHY FORK (STREAM 1 AND STREAM 2) AND THE PIPING OF APPROX 1,155 FEET OF AN ADDITIONAL UNNAMED TRIBUTARY TO BRUSHY FORM (STREAM 3). THE DEPOSITION OF DREDGED AND/OR FILL MATERIAL OCCURRED DURING CONSTRUCTION OF THE COWLEY CREEK SUBDIVISION. ON NOV 19, 2008, PERSONNEL FROM THE KY DIV OF WATER CONDUCTED AN INSPECTION OF THE COWLEY CREEK SUBDIVISION IN ASSOCIATION WITH RESPONDENT'S APPLICATION FOR WATER QUALITY CERTIFICATION. AT THAT TIME, KDOW IDENTIFIED POTENTIAL UNPERMITTED IMPACTS TO WATERS OF THE U.S. ON JAN 7, 2009, THE U.S. ARMY COE CONDUCTED AN INSPECTION OF THE COWLEY CROSSING SUBDIVISION. AT THAT TIME, THE COE DETERMINED THAT FILL MATERIAL HAD BEEN PLACED BELOW THE ORDINARY HIGH WATER ELEVATION OF UNNAMED TRIBUTARIES TO BRUSHY FORK. ON JAN 26, 2009, THE COE ISSUED A CEASE AND DESIST ORDER TO HARDIN COUNTY DEVELOPERS PROHIBITING IT FROM FURTHER PLACEMENT OF EXCAVATED OR FILL MATERIAL BELOW THE ORDINARY HIGH WATER ELEVATION OF BRUSHY FORK AND ANY OF ITS TRIBUTARIES. ON APR 2, 2009, COE REFERRED THE ENFORCEMENT CASE TO EPA. ON AUG 24, 2009, EPA CONDUCTED AN INSPECTION OF THE DISCHARGE AREA WITH COE AND DETERMINED THAT FILL MATERIAL HAD BEEN PLACED IN WATERS OF THE U.S. EPA ISSUED AN ADMIN COMPLIANCE ORDER AND AN INFO REQUEST FOR RESPONDENT ON NOV 9, 2009, ORDERING RESPONDENT TO CEASE WORKING IN WATERS OF THE U.S. AND TO SUBMIT A RESTORATION PLAN. ON DEC 8, 2009, RESPONDENT SUBMITTED A RESPONSE TO EPA'S INFO REQUEST, IN WHICH RESPONDENT STATED THAT SUBDIVISION CONTRACTORS AND LAND DISTURBANCE ACTIVITIES COMMENCED ON OR ABOUT MAY 15, 2007. RESPONDENT PURCHASED 368.55 ACRES OF REAL PROPERTY COMPRISING THE COWLEY CROSSING SUBDIVISION ON APR 7, 2006. THEREFORE, RESPONDENT WAS THE OWNER AND OPERATOR. COMMENCING ON OR ABOUT MAY 15, 2007 TO PRSENT, RESPONDENT AND/OR THOSE ACTING ON BEHALF OF RESPONDENT, DISCHARGED DREDGED AND/OR FILL MATERIAL INTO STREAMS ON THE SITE USING EARTH MOVING MACHINERY DURING UNAUTHORIZED ACTIVITIES ASSOCIATED WITH SITE PREPARATION FOR THE CONSTRUCTIN OF THE COWLEY CROSSING SUBDIVISION. RESPONDENT'S UNAUTHORIZED ACTIVITIES IMPACTED APPROX 3,148 FEET OF THREE UNNAMED TRIBUTARIES TO BRUSHY FORK, WHICH FLOWS INTO OTTER CREEK, A NAVIGABLE WATER OF THE U.S. AT NO TIME DURING THE DISCHARGE DID RESPONDENT POSSESS A PERMIT UNDER CWA 404. ORDER REQUIRES: A. RESTORATOIN OF STREAMS 1 AND 2. B. WITHIN 30 DAYS, RESPONDENT SHALL APPLY TO THE COE FOR AUTHORIZATION UNDER NATIONWIDE PERMIT 32 FOR ANY DISCHARGE OF DREDGED OR FILL MATERIAL TO DURING DURING RESTORATION WORK IN STREAMS 1 AND 2 AND FOR APPROX 1,155 LINEAR FEET OF DREDGED OR FILL MATERIAL TO REMAIN IN STREAM 3. C. RESPONDENT SHALL NOTIFY EPA WITHIN 10 DAYS OF ITS RECEIPT OF AN EFFECTIVE NWP 32 AND OF THE ANTICIPATED CONSTRUCTION START DATE FOR THE RESTORATION OF STREAMS 1 AND 2. RESTORATION MUST BE COMPLETED WITHIN 9 MONTHS OF RECEIVING AN EFFECTIVE NWP 32. WITHIN 30 DAYS AFTER COMPLETION OF RESTORATION, RESPONDENT SHALL SUBMIT A WRITTEN STATEMENT OF COMPLETION AND SCHEDULE AN INSPECTION OF THE OF THE RESTORED STREAM AREAS. D. RESPONDENT SHALL INSPECT THE RESTORED AREAS ANNUALLY FOR FIVE YEARS AFTER COMPLETION OF INITIAL PLANTING TO DETERMINE SUCCESS OF THE PLANTING. AT EACH INSPECTION, RESPONDENT SHALL REPLACE ENOUGH DEAD PLANTS TO ENSURE THAT AT LEAST 80 PERCENT OF THE ORIGINAL NUMBER OF PLANTS INSTALLED ARE ALIVE. RESPONDENT SHALL SUBMIT A REPORT TO EPA BY JAN 30TH OF EACH YEAR. E. RESPONDENT SHALL PROVIDE EPA DOCUMENTATION SHOWING COMPLIANCE WITH PAYMENT OF COMPENSATORY MITIGATION WITHIN 30 DAYS.

Defendants (1)

• HARDIN COUNTY DEVELOPERS, INC.Named in settlement

Facilities (1)

• WETLANDS - COWLEY CROSSING GOLF DEVELOPMENT (HARDIN COUNTY DEVELOPERS)

  S. WILSON ROAD, RADCLIFF, KY, 42071

  Registry ID: 110040415681

Statutes cited

• CWA 404 — Permits for Dredge and Fill Material

Enforcement conclusions (1)

• HARDIN COUNTY DEVELOPERS INC.entered 2011-08-29

  Primary law: CWA

Timeline (2 milestones)

• 2011-08-29Final Order Issued
• 2011-09-13Enforcement Action Data Entered