Woodard & Curran’s environmental experts were instrumental in the effort to remedy what the U.S. Department of Justice and the Environmental Protection Agency described as “the largest violation to Section 404 of the Clean Water Act in recorded history of EPA Region IV.” I recently had the opportunity to share our team’s extraordinary work at the American Bar Association’s spring conference on environmental law in Austin, Texas. Here is the outline of the astounding Saraland restoration story.
Constructing a massive dam without a permit and ensuing violations
In 2006, a Georgia landowner began construction to build a 250-acre lake, an associated 525-foot dam, and a perimeter road around the lake on his property. He did so without any permit. The illegal construction was discovered in 2012 by air as part of a joint program between the Georgia Forestry Commission and the EPA. The result was the flooding of 94 acres of wetland and damage to 3.3 miles of stream, which far exceeds the 5,000 square-foot regulatory limit that requires Army Corps of Engineers involvement under the Clean Water Act.
The landowner responded to federal charges by filing bankruptcy. Following foreclosure, the court-appointed trustee realized the magnitude of the violation and hired Woodard & Curran to serve as an environmental consultant and work with the EPA and the DOJ to reach a resolution. The DOJ petitioned to place the secured lenders in control, with a deal in place for restoration of the land. The former landowner appealed the court’s decision, but in 2015 the Eleventh Circuit Court of Appeals upheld the bankruptcy disposition.
In all, the landowner had violated the Clean Water Act, the Georgia Erosion and Sedimentation Act, the Endangered Species Act, and the National Environmental Policy Act.
Creating and implementing the restoration plan
Woodard & Curran led the design, permitting, and oversight of the activities required to restore the wetlands and waters within the Altamaha River Watershed impacted by the impoundment. The EPA’s restoration order included draining the man-made lake and restoring the forest and lowland vegetation, waterways, and natural drainage to pre-flooding conditions to the extent feasible.
Woodard & Curran’s permitting and ecological services professionals, primarily in our Georgia and Massachusetts offices, began work on an approximately two-year construction, revegetation, and monitoring plan, which was negotiated with several agencies. We completed federal corrective action plans, baseline data collection, stream and wetland restoration design, and applicable federal and State of Georgia permits.
The plan for the restoration included the removal of the existing culverts, roads, and fill material from the entire floodplain and wetlands, the restoration of constructed stream channel and floodplain, installation of instream and streambank structures, and replanting in disturbed areas. The restoration design was limited to the areas most affected by the erection of the dam and stream crossings associated with the constructed roads. During the later stages of permitting and negotiations, the EPA agreed that two of the affected areas could be removed from the restoration plan.
Navigating construction challenges
We then initiated the improvement of approximately four miles of waterway and wetlands, which was monitored by Army Corps of Engineers. In 2014, the first phase of construction began with a controlled breach of the 50,000-cubic-foot dam to drain the lake. We conducted downstream sedimentation controls and monitoring and constructed a ford crossing over the main stream that fed the old lake. Per a request by the USFWS, the design plans were modified to connect the stream design to the natural channel downstream.
The second phase of construction, conducted from 2015-2016, included earthwork to support revegetation and restore hydrology, final removal of the dam, and planting to restore the forest and native plant community. In addition, the gopher tortoise—a state-protected and threatened species— was discovered at the site and further field adjustments were made to protect their habitat and monitor for activity.
The ecosystem downstream of the recently removed dam and restored stream channel is a high-quality bottomland hardwood forest—an important ecological resource with abundant biodiversity and valuable commercial timber—and it serves as habitat for candidate federally protected species. The $2.5M in restoration costs were paid via the trust established through foreclosure.
This particular case also sheds light on the fact that secured lenders need to perform due diligence to understand potential risks in their portfolio. It is also clear that remote sensing and documentation programs, such as the joint program conducted between the Georgia Forestry Commission and the EPA, are becoming more frequent. This interagency coordination appears to be working well and has resulted in both the discovery of violations and enforcement.
While this project was complex, we found that coordination between federal and state authorities was very feasible under current statutes, and existing standards and protocols were adequate to compel and guide restoration. In the end, the client and the regulatory agencies were pleased with our effort to lead the restoration of this land, which they determined was nothing short of a miracle.