Home builder must pay $460,000 for wetlands violations

Publication Date: 12/28/10
Source: Miami Herald
Posted By:  http://envfpn.advisen.com

When one of South Florida’s largest home builders received a federal permit seven years ago for a development called Islands of Doral, the approval came with some conditions.

To compensate for destroying 415 acres of maleleuca-infested wetlands in West Miami-Dade County, Century Homebuilders agreed to set aside another 47 acres and create a wetlands preserve by removing the exotic species and replanting with spikerush, pond apple and other native foliage.

Century never completed the job.

Under the terms of a settlement approved this month by U.S. District Judge James Lawrence King in Miami, the builder now must perform the wetlands work it originally pledged to complete and pay a $400,000 fine plus $60,000 in other regulatory fees — an unusually stiff penalty in a wetlands-violation case.

Ignacio Moreno, an assistant attorney general for the U.S. Department of Justice’s Environmental and Natural Resources Division, said in a statement that the case showed the federal government’s commitment to enforcing wetlands-protection laws.

“The substantial penalty and other relief obtained in this case underscore a message to all builders that they must meet all conditions of the permit,” Moreno said in a news release.

Century executives — company president Sergio Pino, who signed the settlement called a “consent decree,” and Cesar Llano, vice president of land development — did not respond to several telephone messages left in the past few weeks. Neither did Mitchell Widom, a Miami attorney who represented the company in the federal civil case filed in December 2009 by the Justice Department on behalf of the U.S. Army Corps of Engineers.

In its response to the complaint, the company admitted it had not done much of the required wetlands enhancement required under the Corps permit, which included clearing invasive plants, building protective berms and planting more than 100,000 native plants. But it provided no explanations and also denied many of the alleged violations, including an allegation that it illegally filled one acre of the intended preserve when it dumped rock fill on surrounding lands to build the housing project.

The settlement, citing evidence from the developer about “the limits of their ability to pay,” gives the company two years to come up with the $400,000 fine — $50,000 within six months, an additional $180,000 by Oct. 1, 2011, and $170,000 by the following Oct. 1. Century must also purchase $60,000 in wetlands “mitigation credits” that will be applied toward an ongoing wetlands-restoration project in Everglades National Park.

The Corps has been criticized over the years by environmentalists, Congress and government watchdog agencies for its lax oversight of so-called “mitigation” projects. Such projects are intended to offset development of wetlands by improving the environmental quality of other sites or even creating new wetlands.

In 2005, the U.S. Government Accountability Office issued a report that found the Corps did a poor job of determining whether developers followed through with promised work and rarely inspected the restored or constructed wetlands. In 2008, the Corps overhauled its policies.

In a written response to e-mail questions, the Corps’ Jacksonville district said it first brought up the incomplete work with Century in 2006 “and sought to informally resolve the noncompliance issues for the next three years.”

The fine ranks among the largest levied in recent years in such cases — at least in Florida. In 2009, the Corps hit a Tampa-area developer with a $300,000 fine and 18-month work suspension for clearing an acre of forested wetlands and dumping muddy discharge into a creek that feeds into the Hillsborough River, a main source of drinking water for Tampa.

Royal Gardner, vice dean of law at Stetson University in Gulfport and a former Corps attorney on wetlands laws, said in an e-mail response to questions that, in the past, the agency focused more on illegally filled wetlands. Cases against builders that failed to performed promised mitigation projects were rarer, he said.

“If this is a fine for failure to do mitigation, then I’d characterize it as a significant penalty and a great precedent,” he said.

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