EPA v. MISSISSIPPI DEPARTMENT OF TRANSPORTATION (MDOT)

Case summary

7/25/12 - CONSENT AGMT AND COMPLIANCE ORDER ISSUED. THIS CACO PERTAINS TO THE DEPOSITION OF DREDGED AND/OR FILL MATERIAL INTO JURISDICTIONAL WATERS OF THE U.S. SPECIFICALLY, THE DEPOSITION OCCURRED IN APPROX 2,200 LINEAR FEET OF THE SOUINLOVEY CREEK, ITS TRIBUTARIES AND APPROX 27 ACRES OF ABUTTING WETLANDS, ALL WHICH FLOW INTO THE UPPER CHICKASAWHAY RIVER. THE DEPOSITION OCCURRED DURING A ROAD IMPOROVEMENT PROJECT ALONG STATE ROUTE 513. THE SITE IS LOCATED IN ROSE HILL, MS. THE MDOT WAS ISSUED A NATIONWIDE PERMIT (NWP) 23 BY THE U.S. ARMY CORPS OF ENGINEERS ON JAN 20, 2010 (SUSPENDED ON OCT 26, 2010 AUTHORIZING 2,200 LINEAR FEET OF STREAM IMPACTS. NO WETLAND IMPACTS WERE AUTHORIZED UNDER THIS NATIONWIDE PERMIT FOR CATEGORICAL EXCLUSIONS. MDOT WAS ALERTED OF THE WETLAND IMPACTS AFTER RECEIPT OF AN ANONYMOUS TIP ON OCT 13, 2010. ON OCT 14, 2010, MDOT'S WETLAND SCIENTISTS CONDUCTED A SITE VISIT AND VERIFIED THE WETLAND IMPACTS. EPA CONDUCTED A SITE VISIT IN SEPT 14, 2011, AND OBSERVED IMPACTS TO 27 ACRES OF WETLANDS AS WELL AS APPROX 2,200 LINEAR FEET OF A JURISDICTIONAL STREAM WITH THE PROJECT CORRIDOR. THE WETLAND IMPACTS WERE NOT AUTHORIZED BY MDOT'S NATIONWIDE PERMIT. COMMENCING ON OR ABOUT OCT 2010 TO THE PRESENT, RESPONDENT DISCHARGED DREDGED AND/OR FILL MATERIAL INTO STREAMS AND WETLANDS ON THE SITE USING EARTH MOVING MACHINERY DURING UNAUTHORIZED ACTIVITY IN THE COURSE OF A ROA DIMPROVEMENT PROJECT. TO PRESENT, THE UNAUTHORIZED DREDGED AND/OR FILL MATERIAL DISCHARGED BY THE RESPONDENT REMAINS IN WATERS OF THE U.S. RESPONDENT'S UNAUTHORIZED ACTIVITIES IMPACTED APPROX 2,200 LINEAR FEET OF THE SOUINLOVEY CREEK AND ITS TRIBUTARIES, AND 27 ACRES OF ABUTTING FORESTED WETLANDS, ALL WHICH FLOW INTO THE UPPER CHICKASAWHAY RIVER. ORDER REQUIRES: WITHIN 30 DAYS, RESPONDENT SHALL APPLY TO THE USACE FOR AN AFTER-THE-FACT PERMIT. IF GRANTED, RESPONDENT SHALL COMPLY ITH ALL REQUIREMENTS AND CONDITIONS OF THE USACE PERMIT, INCLUDING BUT NOT LIMITED TO, PAYMENT OF COMPENSATORY MITIGATION CREDITS AND RESTORATION OF 9.9 ACRES OF WETLANDS WITHIN THE OLD ROAD BED ACCORDING TO THE OCT 12, 2011 RESTORATION PLAN. RESPONDENT SHALL NOTIFY EPA OF THE PERMIT APPLICATION WITHIN 7 DAYS OF SUBMISSION. EPA HSALL BE PROVIDED WITH A COPY OF THE PERMIT AUTHORIZATION WITHIN 30 DAYS. EPA SHALL ALSO BE PROVIDED DOCUMENTATION SHOWING COMPLIANCE WITH PAYMENT OF COMPENSATORY MITIGATION WITHIN 30 DAYS. WITHIN 30 DAYS AFTER ROAD AND BRIDGE CONSTRUCTION IS COMPLETED, RESPONDENT SHALL BEGIN RESTORATION OF THE 9.9 ACRES AREA WITHIN THE OLD ROAD BED. UNDER THE DIRECTION OF A QUALIFIED WETLANDS EXPERT, THE ORIGINAL SOIL ELEVATIONS AND CONTOURS MUST BE RESTORED BY REMOVING THE FILL MATERIAL. FOWWING THE REMOVAL OF FILL MATERIAL, THE IMPACT AREA MUST BE PLANTED IN WETLAND TREE SPECIES AT A DENSITY OF 350 STEMS PER ACRE. NO SINGLE SPECIES SHALL COMPRISE MORE THAN 30% THE TOTAL NUMBER OF TREES PLANTED. WITHIN 15 DAYS AFTER COMPLETION OF THE PLANTING, RESPONDENT SHALL SUBMIT A RESTORATION REPORT OT EPA DETAILING HOW THE RESTORATION WAS COMPLETED. RESPONDENT SHALL INSPECT THE RESTORATION AREA ANNUALLY FOR 5 YRS AFTER COMPLETION OF RESTORATION TO DETERMIN THE SUCCESS OF THE RESTORATION AND TO ENSURE THE SURVIVAL OF AT LEAST 280 STEMS PER ACRE. RESPONDENT SHALL SUBMIT AN ANNUAL INSPECTION REPORT TO EPA BY DEC 30TH OF EACH YEAR OF MONITORING. IN THE EVENT THAT AN ANNUAL INSPECTION REPORT INDICATES THAT THE SUCCESS CRITERION OF A SURVIVAL RATE OF AT LEAST 280 STEMS PER ACRE IS NOT BEING MET, THEN THE RESPONDENT SHALL SUBMIT A REVISED RESTORATION PLAN WITHIN 30 DAYS OUTLINING PROCEDURES TO BE TAKEN TO ENSURE THAT THE SUCCESS CRITERION IS MET. EPA WILL REVIEW SUBMITTED REPORTS AND/OR RESTORATION PLANS AND WILL EITHER APPROVE THEM OR PROVIDE COMMENTS. RESPONDENT SHALL ADDRESS ANY COMMENTS PROVIDED BY EPA WITHIN 15 DAYS. IN THE EVENT OF A DISAGREEMENT, EPA WILL CONSIDER THE RESPONDENT'S POSITION AND MAKE A FINAL DETERMINATION

Defendants (1)

• MISSISSIPPI DEPARTMENT OF TRANSPORTATION (MDOT)Named in settlement

Facilities (1)

• MISSISSIPPI DEPARTMENT OF TRANSPORTATION (MDOT)

  S. R. 513, ROSE HILL, MS, 39330

  Registry ID: 110043473871

Statutes cited

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

Enforcement conclusions (1)

• MISSISSIPPI DEPARTMENT OF TRANSPORTATION (MDOT)entered 2012-07-25

  Primary law: CWA

Timeline (2 milestones)

• 2012-07-25Final Order Issued
• 2012-08-08Enforcement Action Data Entered