An Arizona Land Developer

Although this is not an environmental criminal matter, it could have been.  An old adage is that the only difference between an environmental crime and an environmental civil violation is who gets to your door first. 

 

On October 7, 2008, an Arizona land developer and a contractor agreed to settle allegations of violations of the Clean Water Act for bulldozing, filling, and diverting approximately five miles of the Santa Cruz River, a major waterway in Arizona.  According to the settlement, Scottsdale, Arizona based developer George H. Johnson (and his company Johnson International, Inc.), General Hunt Properties, Inc. and land-clearing contractor 3-F Contracting, Inc. will pay a combined $1,250,000.00 civil penalty.  The penalty is the largest obtained in the history of USEPA’s Pacific Southwest Region, and one of the largest in USEPA’s history, under Section 404 of the Clean Water Act.  Section 404 protects against the unauthorized filling of federally protected waterways through a permit program administered jointly by USEPA and the USACE.  The settlement resolves a Clean Water Act complaint filed in 2005 by the Justice Department and EPA against Johnson and his companies for clearing and filling an extensive stretch of the lower Santa Cruz River and a major tributary, the Los Robles Wash, without a permit from the Corps of Engineers.

 

The alleged violations occurred in 2003 and early 2004, when defendants bulldozed 2000 acres of the historic King Ranch and La Osa Ranch in Pinal County, Ariz.  The bulldozed areas are within the largest active floodplain of the lower Santa Cruz River, which meanders through the two ranches in natural braids, a rarity for this heavily channelized waterway. 

 

The settlement, in the form of a proposed consent decree, was lodged in the United States District Court in Phoenix.  It is subject to a thirty (30) day comment period.  After that thirty (30) day comment period, the court may either approve or disapprove the settlement.  A copy of the proposed consent decree is available on the United States Department of Justice Department web site at www.usdoj.gov/enrd/Consent_Decrees.html.

 

The seven-figure penalty in this type of enforcement case is unprecedented and should serve as a deterrent.  Granta Nakayama, assistant administrator for USEPA's Office of Enforcement and Compliance Assurance, was quoted as stating that the “action contributes to EPA's record-shattering enforcement results.  To date, EPA has concluded enforcement actions requiring polluters to spend an estimated $11 billion on pollution controls, clean-up and environmental projects, an all time record for EPA.” 

 

More later.

 

As always, feel free to call me or e-mail me with any questions at walter.james@jamespllc.com.

 

WDJiii