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Memorandum
of Understanding Resolves Criminal Investigation & Natural Resource
Damages Claims Aginst St. Johns River Water Management District |
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October 8, 2003
Contact:
Tom MacKenzie, FWS, 678-296-6400
ENRD: 202-514-2007
WASHINGTON, D.C. – Thomas Sansonetti,
Assistant Attorney General for the Justice Department’s Environment
and Natural Resources Division and Paul Perez, U.S. Attorney for the Middle
District of Florida, announced today a Memorandum of Understanding (MOU)
with the St. Johns River Water Management District resolving a criminal
investigation and natural resource damages claims.
The MOU resolves criminal
charges against St. Johns River Water Management District under the
Migratory Bird Treaty Act (MBTA), the Endangered Species Act (ESA),
and the Bald and Golden Eagle Protection Act, as well as civil claims
for natural resource damages under the Comprehensive Environmental Response,
Compensation and Liability Act.
The District’s alleged liability stemmed from its conduct from
the fall of 1998 through the spring of 1999 when over a thousand migratory
birds, including endangered wood storks, died in and near the northern
shore of Lake Apopka in Central Florida. The MOU has no effect on whether
or not restoration in any form may proceed at the site; any restoration
must comply with, among other things, existing legal prohibitions against
taking migratory, threatened or endangered birds.
The birds died in and around
farm fields that had been in production since the 1940s when part of
Lake Apopka was drained to create muck farms. Use of phosphate fertilizers
and pesticides on these farms, among other things, resulted in severe
degradation of the water quality in Lake Apopka. Shortly before the
birds began to die, the District began purchasing these muck farm properties
as part of a program to reduce phosphorus deposition and restore Lake
Apopka. The District sold 30-year conservation easements on much of
this property to the Natural Resource Conservation Service of the U.S.
Department of Agriculture.
In early November, 1997,
a risk assessment was completed for the first large parcel purchased
that found, among other things, that the levels of the now banned pesticide
DDT and toxaphene on the property presented an increased risk for birds
eating fish from any restored wetlands on the site. These and other
organochlorine pesticides were detected at relatively higher levels
on the second group of properties purchased. A comparative study conducted
on this group of properties addressed only DDTs and toxaphene but omitted
full assessment of other pesticides such as dieldrin. The comparison
study nevertheless reached conclusions similar to those of the risk
assessment.
Despite this information,
in the late summer to fall of 1998, during peak migration, the District
directed the shallow flooding of these two large sections of the properties.
Over a thousand migratory birds died on or near the properties. Certain
organochlorine compounds, including dieldrin, toxaphene and DDT and
its metabolites, located on the flooded farm properties were primary
causative factors in, or the cause of, the bird deaths.
The provisions related to the criminal investigation are found in Sections
I-IV and VIII. In sum, the St. Johns River Water Management District
is required to:
- bring all of its properties
into compliance with the ESA and other wildlife statutes;
- reimburse the wildlife rehabilitators
that worked on affected birds the approximately $90,000.00, collectively,
that they expended in this effort;
-
run a conference
to educate other Water Districts regarding the wildlife laws;
-
make certain
acknowledgments regarding the cause of death of the birds and its
role therein;
-
provide
training to its employees;
-
conduct
a five-year program to monitor pesticide levels in Lake Apopka;
- monitor wood stork populations
on its properties for five years, and;
- develop an active management
plan for threatened or endangered species on at least 200 acres of its
properties.
The United States agrees not to file criminal charges against St. Johns
River Water Management District for wildlife violations, provided that
it does not materially breach the relevant terms of the MOU.
The Natural Resources Damages provisions are found in Sections V though
VIII. During the preparation of the required Damage Assessment and Restoration
Plan for the resolution of these claims, an opportunity arose for the
district to purchase an undeveloped 8,465 acre tract of land in St.
Johns County, Florida (the Matanzas Marsh property) that contained one
of the two largest wood stork colonies in Northeast Florida. Because
immediate action was required to obtain the property, the district coordinated
the purchase of the land prior to completion of the Damage Assessment
and Restoration Plan. The District undertook this action with the understanding
that the United States was not obligated to determine that purchase
of the Matanzas Marsh property and protection of the wood stork colony
would satisfy the District’s obligation for natural resource damages.
The Damage Assessment and Restoration Plan -- funded by the St. Johns
River Water Management District -- has been completed, and U.S. Fish
and Wildlife Service has concluded that purchase of the Matanzas Marsh
property, along with protection of the wood stork colony is its preferred
alternative. Therefore, the MOU contains obligations to ensure the monitoring
and management of the wood stork colony.
It also provides that the
District will pay $26,868.11 in past costs incurred by the Department
of the Interior in connection with the damage assessment and future
costs up to $1,500 per year to fund the Interior’s participation
in the monitoring of the Matanzas Marsh wood stork colony. In addition,
the District has agreed to pay $14,776.30 to the U.S. Fish and Wildlife
Service to fund an update of the existing habitat management guidelines
for the wood stork and an additional $10,450.00 to fund a study of eggshell
thinning.
The Memorandum of Understanding contains a covenant not to sue, with
reopeners. If the St. Johns River Water Management District breaches
the agreement during the first five years after execution of the Memorandum,
the United States would be able to bring an action against it for natural
resource damages. The Memorandum further provides that the Damage Assessment
and Restoration Plan will be subject to public comment, and that U.S.
Fish and Wildlife Service may withdraw from the natural resource damage
provisions of the MOU if public comments disclose facts or considerations
which indicate that the actions set forth in the MOU are not appropriate
compensation for the injuries to natural resources.
The investigation of this case was lead by Special Agents of the U.S.
Fish and Wildlife Service with cooperation and assistance from the Florida
Fish and Wildlife Conservation Commission; the Brunswick, Georgia Ecological
Contaminants Division of the U.S. Fish and Wildlife Service; and the
National Wildlife Health Center of the U.S. Geological Survey. The case
was prosecuted by the U.S. Attorney’s Office, Middle District
of Florida, and the Wildlife and Marine Resources Section and the Environmental
Enforcement Section of the U.S. Department of Justice.
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