Tennessee Highway Agency Settles Major Wetland Suit

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Tennessee Highway Agency Settles Major Wetland Suit

TDOT Pays More Than $500,000 to Compensate for Wetland Mitigation Left Undone

Nashville — The Tennessee Department of Transportation (TDOT) has settled a major wetlands protection lawsuit brought against it by Public Employees for Environmental Responsibility (PEER).   While the settlement approved by the U.S. District Court for the Middle District of Tennessee addresses only a handful of sites where TDOT did not perform required wetland restoration or creation, it has implications for scores of other neglected sites throughout the state and thousands more across the nation.

Under the Clean Water Act, wetlands and streams are supposed to be protected but state and federal agencies have often been regulating their destruction under the concept of “No Net Loss” since the first Bush administration announced it in 1989.  This means that permits to fill or alter public waterways or wetlands require mitigation by creation of “new” (formerly destroyed or newly constructed) wetlands or stream length to more than replace the amount lost.  Usually mitigation is required at ratios of 2 or 3 to 1, thus, in theory, gradually increasing the amount and having a net gain – or at least no net loss, as the catch phrase implies.

Unfortunately, the mitigation required by permits often is foregone.  For highway agencies, such as TDOT, this may involve many, many sites.   As part of a campaign entitled “Yes, Net Loss,” PEER discovered an analysis of old permit mitigation sites from a 1999 Tennessee Tech University study.  Working with Vanderbilt University interns to conduct field surveys, PEER conducted field surveys and chose TDOT failed mitigation sites to challenge in a lawsuit.

Under terms of the settlement, TDOT will create approximately 20 acres of wetlands and shore bird ponds, retire approximately ten acres of wetland mitigation bank credits, as well as pay costs and attorney fees.  Altogether, the value of the settlement package is estimated to be approximately $530,000.

“In our experience, the transportation department can be the largest wetland offender in a state and thus is the highest priority target for reform,” stated Tennessee PEER Director Barry Sulkin, the former Chief of Enforcement and Compliance for the Tennessee Department of Environment & Conservation (TDEC), who has been pushing TDOT since 2005 for resolution of its mitigation failures.  “This suit redresses only the tip of an ecological iceberg.”

In February 2009, TDOT attempted to insulate itself from all similar permit violations dating back to 1990 by transferring $4.7 million dollars and all compliance responsibilities to TDEC, which had issued the permits.  This agreement purported to cover approximately 185 permits.  Shortly afterwards, PEER filed suit.  TDOT attempted to raise the agreement as a defense but the federal court rejected that ploy, leading to this settlement.

Besides the obvious environmental impacts, the missing wetlands would have protected homes and businesses during the May 2010 Nashville area flood.

“Wetlands are often called nature’s kidneys but they also serve as vital buffers against the ravages of storms and floods,” added Sulkin, pointing to post-Katrina plans to expand Louisiana wetlands.  “Flood control is another reason why it is important to secure our shrinking wetland stocks from the thousands of regulatory short-cuts like the ones highlighted in this case.”

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