EPA v. GATEWAY BANK & TRUST CO. (DIV OF BANK OF HAMPTON ROADS) (CUMBEE ROAD PARTNERS)

Case summary

11/17/2011 - ADMINISTRATIVE CONSENT AGREEMENT COMPLIANCE ORDER ISSUED. THIS CACO PERTAINS TO THE DEPOSITION OF DREDGED AND/OR FILL MATERIAL INTO NAVIGABLE WATERS ON PROPERTY ADJACENT TO OCEAN HIGHWAY AND CUMBEE ROAD SW, NEAR THE TOWN OF SHALLOTTE, BRUNSWICK COUNTY, NC. THE IMPACTS OCCURRED IN APPROX 15 ACRES OF FRESHWATER WETLANDS ADJACENT TO SHARRON CREEK. ADAM LISK IS AN INDIVIDUAL, AND CUMBEE ROAD PARTNERS, LLC, THE OWNER OF THE SITE UNTIL FEB 11, 2011, IS A COMPANY DULY ORGANIZED UNDER THE LAWS OF NC. GATEWAY BANK & TRUST CO., A DIVISION OF THE BANK OF HAMPTON ROADS, SUCCESSOR IN INTEREST VIA MERGER TO GATEWAY BANK & TRUST CO. IS A BANKING CORPORATION DULY ORGANIZED UNDER THE LAWS OF THE COMMONWEALTH OF VA. CUMBEE DEFAULTED ON ITS MORTGAGE FOR THE SITE THAT CONTAINED THE DISCHARGE AREA. GATEWAY, AS A MORTGAGE HOLDER, ASSUMED OWNERSHIP OF THE SITE, INCLUDING THE DISCHARGE AREA, ON OR ABOUT JULY 11, 2011. COMMENCING ON OR ABOUT MARCH 2008, UNTIL DEVELOPMENT ACTIVITIES WERE ABANDONED IN APPROX 2009, CUMBEE AND/OR THOSE ACTING ON BEHALF, DISCHARGED DREDGED AND/OR FILL MATERIAL INTO THE DISCHARGE AREA ON THE SITE USING EARTH MOVING MACHINERY IN CONNECTION WITH THE CONSTRUCTION OF A MIXED USE DEVELOPMENT. AT NO TIME DURING ITS DISCHARGE DID CUMBEE POSSESS A PERMIT UNDER CWA 404 AUTHORIZING THE ACTIVITIES. THE UNAUTHORIZED ACTIVITIES AT THE SITE BY CUMBEE AND/OR THOSE ACTING ON ITS BEHALF IMPACTED APPROX 6 ACRES OF FRESHWATER WETLANDS AT THE DISCHARGE AREA. THE WETLANDS ARE ADJACENT TO SHARRON CREEK, A PERINNIAL TRIBUTARY OF THE SHALLOTTE RIVER. CUMBEE ABANDONED ITS DEVELOPMENT ACTIVITIES AT THE SITE IN APPROX 2009 AND HAS NOT TAKEN ANY STEPS TO RESTORE THE DISCHARGE AREA. NO FURTHER DEVELOPMENT ACTIVITIES HAVE OCCURRED AT THE SITE SINCE APPROX 2009. GATEWAY AGREES TO THE FOLLOWING: A. WITHIN 7 DAYS, GATEWAY SHALL APPLY TO THE U.S. ARMY CORPS OF ENGINEERS (COE) FOR COVERAGE UNDER NATIONWIDE PERMIT 32 CONSISTENT WITH REQUIREMENTS OF NATIONWIDE PERMIT 32 AUTHORIZING THE ACTIVITIES DESCRIBED IN THE RESTORATION PLAN (ATTACHMENT TO ORDER). UPON RECEIPT OF THE COE'S VERIFICATION LETTER GRANTING COVERAGE UNDER NATIONWIDE PERMIT 32 INCLUDING A SPECIFIED COMPLETION DATE, GATEWAY SHALL PROVIDE A COPY TO EPA. B. UNPON RECEIPT OF THE COE VERIFICATION LETTER, GATEWAY SHALL IMPLEMENT THE MITIGATION CREDIT PURCHASE AS DESCRIBED IN THE RESTORATION PLAN. WITHIN 30 DAYS OF COMPLETION, GATEWAY SHALL PROVIDE PROOF OF SUCH MITIGATION CREDIT PURCHASE TO EPA. C. WITHIN 30DAYS, GATEWAY SHALL NOTIFY EPA OF THE ANTICIPATED CONSTRUCTION START DATE FOR RESTORATION. RESTORATION MUST BE COMPLETED WITHIN 6 MONTHS. D. WITHIN 7 MONTHS, GATEWAY SHALL SUBMIT A WRITTEN STATEMENT OF COMPLETION TO EPA, AND SCHEDULE AN INSPECTION OF THE RESTORED DISCHARGE AREA WITH EITHER EPA OR COE. E. GATEWAY SHALL SUBSEQUENTLY MONITOR THE WETLAND RECOVERY IN PHASE I AND PHASE III OF THE SITE AND EACH INPSECTION REPORT REQUIREDE SHALL BE SUBMITTED TO EPA AND COE WITHIN 30 DAYS OF EACH INSPECTION. EACH INSPECTION REPORT SHALL INCLUDE THE DATE OF INSPETION; COLOR PHOTOGRAPHS FROM THE SAME LOCATIONS; A COUNT OF THE NUMBER OF PLANTINGS THAT SURVIVED; AND THE NUMBER OF PLANTS REPLACED TO REACH THE 75% SURVIVAL RATE.

Defendants (1)

• GATEWAY BANK & TRUST CO.Named in settlement

Facilities (1)

• WETLANDS (CUMBEE ROAD PARTNERS)

  CUMBEE ROAD, SHALLOTTE, NC, 28459

  Registry ID: 110040072523

Statutes cited

• CWA 301 — NPDES Discharge without a Permit
• CWA 404 — Permits for Dredge and Fill Material

Enforcement conclusions (1)

• GATEWAY BANK & TRUST CO. (DIV OF BANK OF HAMPTON ROADS) (CUMBEE ROAD PARTNERS)entered 2011-11-17

  Primary law: CWA

Timeline (2 milestones)

• 2011-11-17Final Order Issued
• 2011-11-29Enforcement Action Data Entered