WHEREAS, the Plaintiff, the United States of America, on behalf of the United States Army Corps of Engineers ("Corps"), filed the Complaint herein against Defendant Richmond American Homes of Maryland, Inc., ("Defendant") a Maryland corporation, as successor by merger to Richmond American Holmes of California, Inc., alleging that Defendant violated Section 301(a) of the Clean Water Act ("CWA"), 33 U.S.C. § 1311(a);
WHEREAS, the Complaint alleges that Defendant violated Section 301(a) by discharging dredged or fill material and/or controlling and directing the discharge of dredged or fill material into waters of the United States at the Lakemont 8 and Shadowbrook developments located in the city of Elk Grove, California (the "Sites") and more fully described in the Complaint, without authorization by the Corps;
WHEREAS, the Complaint seeks (1) to enjoin the discharge of pollutants into waters of the United States in violation of CWA Section 301(a), 33 U.S.C. § 1311(a); (2) to require Defendant, at its own expense and at the direction of the Corps, to restore and/or mitigate the damages caused by its unlawful activities; and (3) to require Defendant to pay civil penalties as provided in 33 U.S.C. § 1319(d);
WHEREAS, this Consent Decree is intended to constitute a complete and final settlement of the United States' claims under the CWA set forth in the Complaint regarding the Sites;
WHEREAS, the United States and Defendant agree that settlement of this case is in the public interest and that entry of this Consent Decree is the most appropriate means of resolving the United States' claims under the CWA against Defendant in this case; and
WHEREAS, the Court finds that this Consent Decree is a reasonable and fair settlement of the United States' claims against Defendant in this case, and that this Consent Decree adequately protects the public interest in accordance with the CWA and all other applicable federal law.
THEREFORE, before the taking of any testimony upon the pleadings, without further adjudication of any issue of fact or law, and upon consent of the parties hereto by their authorized representatives, it is hereby ORDERED, ADJUDGED and DECREED as follows:
I. JURISDICTION AND VENUE
1. This Court has jurisdiction over the subject matter of these actions and over the parties pursuant to 28 U.S.C. §§ 1331, 1345, and 1355, and Section 309(b) of the CWA, 33 U.S.C. § 1319(b).
2. Venue is proper in the Eastern District of California pursuant to CWA Section 309(b), 33 U.S.C. § 1319(b), and 28 U.S.C. §§ 1391(b) and (c), because the Defendant conducts business in this District, the subject property is located in this District, and the causes of action alleged herein arose in this District.
3. The Complaint states claims upon which relief can be granted pursuant to Sections 301, 309 and 404 of the CWA, 33 U.S.C. §§ 1311, 1319 and 1344.
4. The obligations of this Consent Decree shall apply to and be binding upon Defendant and its successors and assigns and any person, firm, association or corporation who is, or will be, acting in concert or participation with the Defendant whether or not such person has notice of this Consent Decree. In any action to enforce this Consent Decree against the Defendant, the Defendant shall not raise as a defense the failure of any of its successors or assigns or any person, firm or corporation acting in concert or participation with the Defendant, to take any actions necessary to comply with the provisions hereof.
III. SCOPE OF CONSENT DECREE
5. This Consent Decree shall constitute a complete and final settlement of all civil claims for injunctive relief and civil penalties alleged in the Complaint against the Defendant under CWA Section 301 concerning the Sites.
6. It is the express purpose of the parties in entering this Consent Decree to further the objectives set forth in CWA Section 101, 33 U.S.C. § 1251. All obligations in this Consent Decree or resulting from the activities required by this Consent Decree shall have the objective of causing Defendant to achieve and maintain full compliance with, and to further the purposes of, the CWA.
7. Defendant and Defendant's agents, successors and assigns are enjoined from discharging any pollutant into waters of the United States, unless such discharge complies with the provisions of the CWA and its implementing regulations.
8. This Consent Decree is not and shall not be interpreted to be a permit or modification of any existing permit issued pursuant to Sections 402 or 404 of the CWA, 33 U.S.C. §§ 1342 or 1344, or any other law. Nothing in this Consent Decree shall limit the ability of the Corps to issue, modify, suspend, revoke or deny any individual permit or any nationwide or regional general permit, nor shall this Consent Decree limit the United States Environmental Protection Agency's ability to exercise its authority pursuant to Section 404(c) of the CWA, 33 U.S.C. § 1344(c).
9. This Consent Decree in no way affects or relieves Defendant of its responsibility to comply with any applicable federal, state, or local law, regulation or permit.
10. This Consent Decree in no way affects the rights of the United States as against any person not a party to this Consent Decree.
11. The United States reserves any and all legal and equitable remedies available to enforce the provisions of this Consent Decree and applicable law.
12. Nothing in this Consent Decree shall constitute an admission of fact or law by any party.
IV. SPECIFIC PROVISIONS CIVIL PENALTIES
13. Defendant shall pay a civil penalty to the United States in the amount of Sixty Thousand Dollars ($60,000), within 30 days of the latter of (a) entry of this Consent Decree, or (b) receipt of the Wiring Instructions (hereinbelow defined).
14. Defendant shall make the above-referenced payment by FedWire Electronic Funds Transfer ("EFT" or wire transfer) to the U.S. Department of Justice pursuant to the written instructions provided to the Defendant by the Financial Litigation Unit of the United States Attorney's Office for the Eastern District of California (the "Wiring Instructions"), and in accordance with current electronic funds transfer procedures. Payments received by the Department of Justice after 4:00 P.M. (Eastern Time) will be credited on the next business day.
15. Upon payment of the civil penalty required by this Consent Decree, Defendant shall provide written notice, at the addresses specified in Section VII of this Consent Decree, that such payment was made in accordance with Paragraph 14.
16. Civil penalty payments pursuant to this Consent Decree (including stipulated penalty payments under Section VI) are penalties within the meaning of Section 162(f) of the Internal Revenue Code, 26 U.S.C. § 162(f), or of 26 C.F.R. § 1.162-21 and are not tax deductible expenditures for purposes of federal law.
17. Defendant shall pay a fee in lieu of direct mitigation (in lieu fee) for its impacts to waters of the United States.
18. Defendant shall coordinate with the Corps to determine the amount of the in lieu fee to be paid. The fee paid shall be an amount that will cover the purchase of mitigation credits at the current rate from the National Fish and Wildlife Foundation ("NFWF"), the non-profit organization that manages the Corps' in lieu fee program. The fee will cover the purchase of mitigation credits in the amount of two times the acreage of waters impacted, which is ...