Image Attribution: Moredock Lake, via Google Earth Pro

Introduction

 According to the United States Department of Agriculture, wetlands are a home to many species of migratory and resident birds, reptiles and amphibians, fish, insects, and plants. Wetlands also benefit society by storing floodwaters, filtering pollutants, serving as a carbon sink, and providing recreation sites for boating and fishing, just to name a few.  By 1984, over half (54%) of all the wetlands in the U.S. had been drained or filled for development or agriculture. Due to the fact that 70% of wetlands are located on private lands, cooperation between government agencies and landholders is a critical component of most policy implementation approaches

Under Section 404 of the Clean Water Act, wetlands may be legally destroyed, but their loss must be compensated for by the restoration, creation, or enhancement of other wetlands. This strategy should result in "no net loss" of wetlands. "No net loss" of wetlands was first adopted as a national goal under Jimmy Carter's administration in 1977.  Subsequent Presidents continued to support the policy. 

"Although many States have their own wetland regulations, the Federal Government bears a major responsibility for regulating wetlands. The five Federal agencies that share the primary responsibility for protecting wetlands include the Department of Defense, U.S. Army Corps of Engineers (Corps); the U.S. Environmental Protection Agency (EPA); the Department of the Interior, U.S. Fish and Wildlife Service (FWS); the Department of Commerce, National Oceanic and Atmospheric Administration (NOAA); and the Department of Agriculture, Natural Resources Conservation Service (NRCS) (formerly the Soil Conservation Service). 

Despite all the government legislation, policies, and programs, wetlands will not be protected if the regulations are not enforced. Perhaps the best way to protect wetlands is to educate the public of their benefits. If the public does not recognize the benefits of wetland preservation, wetlands will not be preserved." [1]

EPA Response to Comments

EPA Response to Comments Regarding Proposed CAFO for Dillenberger Farms, Inc., The Estate of James Dillenberger, and the Dillenberger Revocable Trust. Under Section 309(g) of the Clean Water Act, 33 U.S.C. § 1319(g) Docket Number CWA-05-2021-0003

Background Dillenberger Farms, Inc., the Estate of James Dillenberger, and the Dillenberger Revocable Trust (collectively referred to as “Dillenberger”) own and operate an agricultural farm in Valmeyer, Monroe County, Illinois. The U.S. Environmental Protection Agency (EPA) proposes to issue a Consent Agreement and Final Order (“CAFO”) to Dillenberger in accordance with Section 309(g) of the Clean Water Act (CWA), 33 U.S.C. § 1319(g). The Proposed CAFO would settle alleged violations of Section 301 of the Clean Water Act at its site which is next to Moredock Lake in Monroe County, Illinois. Dillenberger discharged dredged and fill material into Moredock Lake without a CWA permit. Moredock Lake is a perennial waterbody that flows to the Mississippi River, a traditional navigable water. EPA alleges that in November 2012, Dillenberger placed dredged and fill material into Moredock Lake without a CWA permit. Dillenberger used mechanized land-moving equipment to clear approximately 2 acres of forested wetlands from their property and adjacent property owned by the Moredock Lake Gun Club. They pushed dredged material and tree debris 150-200 feet into Moredock Lake. Dillenberger agreed to pay a penalty of $20,857 to resolve these alleged violations. Public Notice From December 8, 2020 through January 19, 2020, EPA provided public notice of and an opportunity for interested persons to comment on the CAFO that the Agency proposes to issue to settle this matter with Dillenberger. EPA’s public notice provided an opportunity to comment on the proposed CAFO consistent with Section 309(g)(4) of the CWA, 33 U.S.C. §1319(g)(4) and 40 C.F.R. §22.45(b).

Comments Received EPA received one public comment regarding the proposed CAFO, which was submitted by a representative of Environmental Review, Inc. The commenter asked a question about whether an effort will be made to restore the wetland that was cleared due to the violation. The comment does not object to the proposed CAFO or the amount of the proposed penalty. EPA has considered the comment received and finds that the commenter has not presented any new information that EPA has not considered relating to the CAFO. The comment and EPA’s response are summarized below. 2 Commenter’s Question The commenter stated “According to Section 24 of the CAFO, ‘Beginning in November 2012, Respondents, acting directly or through their agents, used mechanized land-moving equipment to clear approximately 2 acres of forested wetlands from their property and adjacent property owned by the Moredock Lake Gun Club. They pushed tree debris 150-200 feet into Moredock Lake.’ The US government has a policy of ‘no net loss’ with respect to wetlands. Will an effort be made to restore the wetland that was cleared?” EPA’s Response EPA’s authority under section 309(g), 33 U.S.C. §1319(g) is limited to the issuance of administrative penalty orders (not injunctive relief) to remedy dredge and fill violations of the CWA. The commenter does not object nor directly question the penalty or the CAFO.

Consequently, EPA does not believe that the comment has provided any new information related to the proposed assessment of the proposed penalty or the CAFO. EPA notes that it entered into a separate Administrative Order on Consent with Dillenberger on December 7, 2020, pursuant to section 309(a) of the CWA, 33 U.S.C. §1319(a). This agreement addressed the original violation of clearing two acres of forested wetland by requiring Dillenberger to plant trees in 5.44 acres of emergent wetland to convert them into forested wetland and also by preserving an additional 7.55 acres of wetland adjacent to this mitigation site. All the mitigation areas will be protected in perpetuity by a deed restriction. In addition, the original wetlands cleared of forested vegetation remain wetlands; however, their vegetation community type has changed. They are now emergent wetlands instead of forested wetlands. Nonetheless, the resolution has resulted in “no net loss” of wetlands.

________________________________________

Michael D. Harris Division

Director Enforcement and Compliance Assurance Division

U.S. Environmental Protection Agency Region 7

Comment Letter

January 2, 2021

LaDawn Whitehead

Regional Hearing Clerk

U.S. Environmental Protection Agency, Region 5

77 West Jackson Boulevard (E-191) Chicago, Illinois 60604-3590 

Dear Ms. Whitehead:

Environmental Review, Inc. has reviewed the Proposed Consent Agreement and Final Order (CAFO) against Dillenberger Farms, Inc., docket number CWA-05-2021-0003, Monroe County, Illinois, and has the following comments:

 1) According to Section 24 of the CAFO, “Beginning in November 2012, Respondents, acting directly or through their agents, used mechanized land-moving equipment to clear approximately 2 acres of forested wetlands from their property and adjacent property owned by the Moredock Lake Gun Club. They pushed tree debris 150-200 feet into Moredock Lake.”

The US government has a policy of “no net loss” with respect to wetlands.  Will an effort be made to restore the wetland that was cleared?

Please direct your response to:  This email address is being protected from spambots. You need JavaScript enabled to view it..

 Sincerely,

 Barb Johnson, Associate in Minnesota

Senior Reviewer

Environmental Review, Inc., a 501(c)(3) Nonprofit Public Benefit Corporation, 1792 Rogers Avenue, San Jose, CA  95112, http://www.envreview.org/