Excerpts from final version of the Sears Island Consent Decree between Maine DOT, Sierra Club and Conservation Law Foundation amnd the US Justice Department
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United States of America
(plaintiff)
v.
Maine Department of Transportation
Bridge Corp
T.Y. Lin International
Defendants
&
Sierra Club
Conservation Law Foundation
Plaintiff interveners
Section II Applicability
Paragraph 5 (Second sentence)
"At least thirty (30) days prior to Maine Department of Transportation's transfer of ownership or any other interest in any such property, whether by sale, lease or otherwise, Maine DOT shall notify the EPA, the U.S. Department of Justice and the intervener in writing that a transfer is scheduled to occur
III. Scope of Consent Decree
8. The Defendants are permanently enjoined from discharging fill materials to any waters fo the United States, including wetlands at the Terminal Site and the Access Road Site, except in compliance with the express terms of any applicable permits required to be obtained by federal, state and local laws, rules or regulations.
IV. Relief.
13. Maine DOT shall conduct and complete a program of wetland restoration of approximately 3.2 acres of freshwater wetlands at the Terminal Site where the discharge occurred, at the locations indicated on Exhibit 2.
As part of that restoration, Maine DOT shall create one or two vernal pools. The parties acknowledge and agree that the objective of the wetlands restoration program at the Terminal Site is to replace a portion of the lost and impaired function and values of the freshwater wetlands that were filled as a result of the Terminal Site Discharge
IV Relief (page 7 mid page)
The measures of success shall be that (i) at the end of the third full growing season following Certification, as set forth in paragraph 15c, the wetland restoration area must exhibit 70% area cover of vegetation and the plant community that exists n the wetland restoration area must be dominated by hydrophytes (i.e. greater than 50% of the dominant plants inhabiting the newly restored wetland area must be plants typically adapted to life in saturated soil conditions) and (ii) at the end of the amphibian breeding season in each of the second, third and fourth years following Certification, amphibian breeding, egg laying, hatching of young, and emergence and dispersal of young have occurred.
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IV Relief (page 8)
14a...MDOT shall prepare and submit to EPA for its review and approval a preliminary workplan for the topsoil restoration and wetland enhancement of approximately .75 acres [3/4 acre] of currently degraded wetlands at the south central site on Sears Island as indicated on Exhibit 3... The measures of success shall be that (i) at the end of the third full growing season following Certification, as set forth in paragraph 15c, the wetland restoration area must exhibit 70% area cover of vegetation and the plant community that exists in the wetland restoration area must be dominated by hydrophytes (i.e. greater than 50% of the dominant plants inhabiting the newly restored wetland area must be plants typically adapted to life in saturated soil conditions) and (ii) at the end of the amphibian breeding season in each of the second, third and fourth years following Certification, amphibian breeding, egg laying, hatching of young, and emergence and dispersal of young have occurred.
14b. The final removal and Restoration Work Plan shall show final elevations and grades to be achieved through the removal of the fill, provide of elevation spot-check during and after construction to assure that the area is restored to the desired elevation and provide for plantings consisting of wetland grasses and/or herb seed mix and approximately six (6) shrub planting groups (4-5 plants per group) to be scattered throughout the restored area.
.....
The Final Removal and Restoration Workplan, as approved, shall be an enforceable obligation of this Consent Decree.
Page 9. A program of Stream Bank stabilization and restoration and wetlands enhancement at Dyer Creek in Alna, Maine, as indicated on Exhibit 4.
The objective of the Dyer Creek Restoration shall be to
(i) exclude all livestock from the Project Area;
(ii) stabilize eroding stream banks; (iii) promote the development of a shrub and emergent-dominated riparian wetland corridor along the length of the restored streambanks in the project area and a forested buffer around the corridor, and (iv) alleviate severe soil compaction to promote the return of natural vegetation.
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Page 13
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The monitoring inspection which occurs near the end of the third full growing season following Certification will also be used to determine whether the measures for success for the Terminal Restoration site, the Additional Restoration Site and the Dyer Creek Restoration Project have been achieved, except fo the vernal pools; whether the measures of success for the vernal pools have been achieved shall be determined during the monitoring inspection that occurs in the fourth year following Certification. Defendant Maine DOT shall perform all operation and maintenance activities required under the Workplan as approved for a period not to exceed five years following Certification.
d. If the measures identified in the Workplan are not achieved (although Maine DOT complies with all of the terms and conditions of the applicable Workplan), EPA shall notify Maine DOT of the need for subsequent steps no later than June 1 of the year of the fourth full growing season following Certification. Within 30 days of receiving such notice from EPA, Maine DOT and the United States shall meet to develop the subsequent steps necessary to achieve the objectives of the applicable Workplan and a schedule for completing the subsequent steps (Subsequent Steps"). If Maine DOT and the United States are able to establish mutually agreeable Subsequent Steps, then within ninety (90) days of such notice from EPA, Maine DOT shall incorporate the SUBSEQUENT Steps into an amended workplan. Maine DOT shall implement the amended Workplan, as approved by EPA, in accordance with the schedule in that Workplan, and the amended Workplan shall be an enforceable obligation of this Consent Decree. If Maine DOT and the United States are unable to establish mutually agreeable Subsequent Steps within the time frame set forth above, their either party may petition the Court for resolution in accordance with the dispute resolution provision in Section IX (Dispute Resolution) of this Consent Decree.
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Page 14
Subsequent Permit Applications:
Preservation of Restoration Properties
16a. Nothing in this Decree requires Maine DOT to undertake a program of removal and restoration at the Access Road Site. Maine DOT, EPA and the Intervener agree that, in any future section 404 permit application to discharge additional dredged or fill materials into wetlands or other waters of the United States and Sears Island in connection with a project that includes use of any property where fill remains in place at the Terminal Site, MDOT or its successors will, as part of such permit application, seek after-the-fact authorization for the Discharge at the Terminal Site and Access Road Site. In such a future permit application process, the determination of whether the overall impacts of the project would comply with the Section 404(b)(1) Guidelines (40 C.F.R. Part 230) of the ten applicable comparable provisions of law) will include an evaluation fo the impacts of the fill that remains in place on the functions and values of the original (pre-filled) wetlands at the Terminal Site and Access Road, along with the restoration work that is performed pursuant to paragraphs 13 and 14 of this Decree. Maine DOT reserves the right to argue to the Corps that no additional compensatory mitigation should be required with respect to offsetting the impacts of the fill that remains in place. EPA reserves the right to argue to the Corps that additional compensatory mitigation with respect to offsetting the impacts fo the fill that remains in place is necessary to ensure compliance with the Guidelines.
The parties agree that nothing in this Decree shall be interpreted or construed as changing any party's position, as previously expressed during the marine cargo terminal permit application process, regarding the impacts of and mitigation requirements for filling waters of the United
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Page 15
States at Sears Island, nor shall it be construed as limiting the parties positions on impacts and mitigation requirements in future permit proceedings.
b. Maine DOT or its successors may submit a subsequent permit application (a "Subsequent Application") seeking authorization for the discharge of dredged or fill material at the approximately 3.2 acres at the Terminal Site after they have been restored. Maine DOT agrees that, for any Subsequent Application filed within thirty (30) years after issuance of the Certificate of Completion pursuant to paragraph 15.c., such application shall propose compensatory mitigation designed to replace or compensate for the functions and values of the forested wetland that originally existed prior to the Discharge which is the subject of this action.
No inference shall be drawn from this paragraph 16.b. regarding the analysis of alternatives for any Subsequent application under 40 CFR 230.10(a) of the guidelines under 404(b)(1) of the Clean Water Act.
17. With respect to the restoration sites restored under paragraph 14, Maine DOT agrees to preserve such sites in perpetuity and shall protect in perpetuity the wetlands functions and values restored and/or created there. Maine DOT shall include in the Work plans submitted for EPA review and approval effective measures to ensure such preservation and protection.
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Section XVII Termination.
44. The obligations of the Decree and this court's jurisdiction over the matter shall terminate upon completion of all requirements of this Decree or the passage of 5 years, whichever is later. The parties shall file the appropriate notice with the Court so that the Clerk may close the file.
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Exhibit 1. Description of the Terminal Site and Access Road Site Wetlands.
Terminal Site. The site is comprised of three, irregularly-shaped areas of land totaling approximately 9.25 acres. See attached drawing, "Estimated Pre-Construction Wetlands - Terminal Site," dated August 1994. Said areas of land area located within the boundaries of land acquired by the State of Maine pursuant to a Notice of Taking dated October 9, 1984 and recorded June 17, 1985 in the Waldo County Registry of Deeds at Book 854, Page 283 and to a Deep with Possibility of Reverter dated February 7, 1994, and recorded in said Registry on February 8, 1994 at Book 1435, Page 278. The wetlands filled at the Terminal were part of a larger forested and shrub wetland system that covered approximately 49 to 52 acres in size.
The filled forested wetlands connected the forested wetlands located to the north and south of the Terminal site. The plant communities in the filled wetlands were dominated by red maple, yellow birch, green ash and balsam fir in the overstory; by speckled alder and balsam fir in the understory; and by cinnamon and sensitive ferns, meadow sweet and skunk cabbage in the ground layer. These wetlands contained soils that were poorly drained and were saturated to the surface in the spring, early summer and late fall. The filled area at the Terminal Site included a stream that drained the wetlands above.
Access Road Site: This site is comprised of four irregularly-shaped areas of land totaling approximately 0.77 acres. See attached drawing entitled "Estimated Pre-construction Wetlands - Access Road," dated September 1994. Said areas of land area located within the boundaries of land acquired by the State of Maine pursuant to a Notice of Layout and Taking dated February 5, 1986 and recorded February 6, 1986 in the Waldo County Registry of Deeds at Book 885, Page 141. The wetlands filled along the Access Road were part of larger forested and shrub wetlands systems extending along the spine of Sears Island. These wetlands contained plant communities, soils and a hydrologic regime similar to those filled at the Terminal Site.
End of excerpts.
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