Thursday, March 18, 2021
The U.S. Department of Justice, U.S. Environmental Protection Agency (EPA) and Bureau of Land Management (BLM) announced that they have reached a proposed settlement with John Raftopoulos, Diamond Peak Cattle Company LLC and Rancho Greco Limited LLC (collectively, the defendants) to resolve violations of the Clean Water Act (CWA) and the Federal Land Policy and Management Act (FLPMA) involving unauthorized discharges of dredged or fill material into waters of the United States and trespass on federal public lands in northwest Moffat County, Colorado.
On Oct. 22, 2020, the United States filed suit in federal district court alleging that beginning in approximately 2012, and as recently as approximately 2015, the defendants discharged dredged or fill material into Vermillion Creek and its adjacent wetlands in order to route the creek into a new channel, facilitate agricultural activities and construct a bridge. These alleged unauthorized activities occurred on private land owned by the defendants and on public land managed by BLM, constituting a trespass in violation of the FLPMA. Vermillion Creek and its adjacent wetlands are waters of the United States and may not be filled without a CWA Section 404 permit from the U.S. Army Corps of Engineers (Corps), which was not obtained. EPA develops and interprets the policy, guidance and environmental criteria the Corps uses in evaluating permit applications.
“This proposed settlement will result in restoration of important waters in the arid west, deter future similar violations of the Clean Water Act and help ensure accountability and a level playing field,” said Acting Assistant Attorney General Jean E. Williams for the Justice Department’s Environment and Natural Resources Division.
“The U.S. Attorney’s Office and Department of Justice will take all necessary steps to protect our precious waters, wetlands, and wildlife,” said Acting United States Attorney Matt T. Kirsch for the District of Colorado. “Western rivers are a treasure and require protection from all threats, including damage to their vital creeks, streams, and tributaries.”
“Unauthorized dredging and filling of waters of the U.S. will not be tolerated,” said Acting Assistant Administrator Larry Starfield for the EPA’s Office of Enforcement and Compliance Assurance. “With this action, EPA is ensuring the proper restoration of vital creek and wetland resources.”
“This proposed settlement will allow the public lands impacted to begin the process of recovery for the future use and benefit of all the public,” said BLM Colorado State Director Jamie Connell.
The United States’ lawsuit further contended that the defendants’ alleged trespass also included unauthorized irrigation, removal of minerals and destruction of numerous cottonwood trees on federal public land. The fill and related activities on BLM lands were conducted without BLM authorization. The defendants’ trespass actions not only interfered with the public’s right to current enjoyment of federal public lands, but also jeopardized the future health and maintenance of these lands for use by all.
Under a proposed settlement filed in the U.S. District Court for the District of Colorado to resolve the lawsuit, the defendants agreed to: pay a $265,000 civil penalty for CWA violations; pay $78,194 in damages and up to $20,000 in future oversight costs for trespass on public lands managed by BLM; remove the unauthorized bridge constructed on public lands; restore approximately 1.5 miles of Vermillion Creek to its location prior to defendants’ unauthorized construction activities; restore the 8.47 acres of wetlands impacted adjacent to the creek; and plant dozens of cottonwood trees to replace those previously removed from federal lands. Additionally, under the terms of the proposed settlement, the defendants will place a deed restriction on their property to protect the restored creek and wetlands in perpetuity.
This proposed settlement will repair important environmental resources damaged by the defendants. The portions of Vermillion Creek and its adjacent wetlands impacted by the defendants’ unauthorized activities provided aquatic and wildlife habitat, runoff conveyance and groundwater recharge. The straightening of Vermillion Creek contributed to erosion of the bed and banks of the stream and detrimental sediment deposition downstream of the channelization. Browns Park National Wildlife Refuge, which provides important habitat for the endangered Colorado pikeminnow, is located at the confluence of Vermillion Creek and the Green River, approximately one mile downstream from the impacted area. Similarly, the destruction of numerous cottonwood trees located adjacent to the creek eliminated nesting, perching, and roosting habitat for raptor species, including bald eagle, golden eagle and red-tailed hawk. Cottonwood galleries with riparian vegetation also provide nesting habitat for a variety of migratory birds.
The proposed settlement, which is subject to a 30-day public comment period and final court approval, is available for review at: https://www.justice.gov/enrd/consent-decrees
For more information on the Clean Water Act, visit EPA’s compliance web page: http://www.epa.gov/compliance. Help EPA protect our nation’s land, air, and water by reporting violations: http://www.epa.gov/tips/
For more information on Section 404 of the Clean Water Act please visit: https://www.epa.gov/cwa-404/permit-program-under-cwa-section-404.
