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Virginia Developer Agrees to Restore Destroyed Wetlands

WASHINGTON, D.C. - Newdunn Associates LLP, and its contractors, Orion Associates and Northwest Contractors (Newdunn) have reached settlements with the United States and the Commonwealth of Virginia, which will require the firms to completely restore the approximately 26 acres of wetlands in Newport News, VA, the Department of Justice, the Army Corps of Engineers, and the Virginia Department of Environmental Quality (DEQ) announced today. The settlements resolve allegations that Newdunn violated the Clean Water Act (CWA).

In 2001, Newdunn failed to obtain state and federal permits before it began digging ditches and filling wetlands on the 43-acre property it owns. The property included approximately 38 acres of wetlands, 26 acres of which were filled. In June 2001, Newdunn started mechanized land clearing, grubbing of stumps, and localized re-grading that resulted in the unauthorized discharge of dredged/fill material into jurisdictional, non-tidal, forested wetlands on the property, in violation of the CWA. After repeated notices from the Army Corps of Engineers and DEQ demanding that Newdunn cease any and all unauthorized work, a "special emergency order" was issued by DEQ demanding that all excavation activity be stopped immediately. This was the first time that such an order was issued by DEQ in more than a decade.

"This joint enforcement action represents that positive results can be achieved when federal and state agencies work together," said Acting Assistant Attorney General Kelly A. Johnson of the Justice Department's Environment and Natural Resources Division. "These settlements will restore and protect valuable wetlands and provide environmental improvements for the people of Virginia."

These actions led to lawsuits in state and federal courts, which have been resolved by the lodging of the consent decree. Under the federal consent decree, Newdunn is required to completely restore the wetlands impacted on site. Newdunn will also pay a $250,000 fine-$150,000 of which will go to Virginia for environmental improvement projects-and will purchase six mitigation bank credits to mitigate for the loss of wetlands during the length of the litigation. Newdunn also agrees to seek permits for any proposed future impacts on site. Newdunn began the onsite restoration work earlier this year.

As part of the state settlement, the State Water Control Board's enforcement action against Newdunn for wetlands destruction will be dismissed, and Newdunn's appeal of the water board's order to restore the wetlands will be dismissed. The money obtained by Virginia in the settlement will be used for various projects, including Virginia's environmental emergency cleanup fund; Wetlands Watch Inc.'s efforts to promote compliance with environmental laws and regulations for wetlands protection in Virginia; and for the Elizabeth River Project to restore wetlands on the Southern Branch of the Elizabeth River.

"The staffs of the Norfolk District and the Virginia DEQ shared information and resources to aggressively pursue this case brought on our behalf by the U.S. Department of Justice and the Virginia Attorney General's Office," said Bob Hume, Norfolk District's Regulatory Branch chief. "The favorable ruling by the Fourth Circuit Court of Appeals was nationally significant. It verified the limited effect of the U.S. Supreme Court's Solid Waste Authority of Northern Cook County v. United States decision and affirmed the Corps' authority to regulate wetlands that are part of a tributary system to navigable waters."

"We have been working with Newdunn Associates to ensure restoration of the wetlands," said the Norfolk District Commander, Col. Yvonne J. Prettyman-Beck. "We're hopeful that the Circuit Court's ruling and this consent decree proves an effective caution to property owners and developers who consider ignoring the regulations. It's always better to work with state and federal regulators in the permit process to come up with a legal and environmentally acceptable way to develop property."

"This agreement strengthens Virginia's wetland protection efforts," DEQ Director Robert G. Burnley said. "Our goal always has been to make sure the proper steps are taken to preserve wetlands, and this agreement makes it clear that those efforts will continue."

Development of America's wetlands is regulated in part by the Corps under the Clean Water Act.