by Vanessa Villarreal, USACE Chicago District
Have you ever wondered what happens to money the U.S. Army Corps of Engineers, Chicago District collects in fines for wetlands violations, and how it obtains those fines in the first place?
The Chicago District regulates certain activities conducted in waterways and wetlands located within Cook, DuPage, Lake, Kane, McHenry and Will counties in northeastern Illinois, as well as Lake, Porter and a portion of LaPorte counties in northwestern Indiana. And part of the Corps' regulatory responsibility involves ensuring that permittees comply with issued permits (i.e. compliance), as well as ensuring that unauthorized activities do not take place in jurisdictional areas (i.e. enforcement).
Failure to obtain a permit for work conducted within waters of the United States (including wetlands), or failure to comply with the terms and conditions of a Department of the Army permit, will result in an enforcement action being brought by the Corps.
The first major case for the Chicago District took place in 1994 and resulted in a $3.6M penalty. Cases have ranged anywhere from $300,000 to $7.5M, and total over $25M in civil penalties since then. An ongoing settlement may result in $80,000 in penalties being paid to the U.S. Treasury once finalized.
According to Mike Machalek, senior enforcement officer in the Regulatory Branch’s West Permits and Enforcement Section, part of the settlements sometimes include permanent protection of wetlands and natural areas, including donations of land to local environmental organizations such as the McHenry County Conservation District (MCCD), the Land Conservancy of McHenry County, the Lake County Forest Preserve District, and the Nature Conservancy.
“Over the years, the Regulatory Branch has worked with our agency partners to set aside several thousand acres of land into permanent protection,” he said.
Resolution options include, but are not limited to, restoration of the destroyed wetland area, approval of an after-the-fact permit application or, in appropriate cases, referral to the U. S. Environmental Protection Agency or the U.S. Attorney for criminal or civil action.
“The Regulatory Branch established a relationship with the U.S. Attorney's Office back in 1993, with Assistant U.S. Attorneys Kurt Lindland and Jonathan Haile,” Machalek said. “And we recently settled a case this August. That is nearly a 30-year cooperative interagency relationship with the same staff, such that both Lindland and Haile are well versed in the language of wetlands, plants, soils, and hydrology. Perhaps even better than the new employees in our branch.”
Machalek adds that the greatest outcome was the creation of the Northeastern Illinois Wetland Conservation Account, partnering with the Conservation Fund; and the Northeastern Wetland Restoration Account, working with the U.S. Fish & Wildlife Foundation through former Chicago District Regulatory Branch Chief John Rogner.
These accounts were originally financed with the $3.6M penalty, which gave the Wetland Conservation Account $600,000 up front to start the initiatives, and then $25,000 per month for the next 10 years. Utilizing this money as the base funding mechanism, it was able to obtain matching funds and grants, which were utilized to find property acquisitions, as well as environmental restoration projects.
Suspected violations of Corps regulatory requirements are made by calling the district’s Regulatory Branch or by filling out a “Report of Unauthorized Activity Form” online.
The Corps receives calls from both the general public, and from the various Building & Zoning Departments in the six northeastern Illinois counties, which are mostly handled by Machalek. The district receives several hundred enforcement-related calls each year, and typically have approximately 75 to 100 active cases per year.
Obtaining these fines are not always easy, as Machalek can attest. He’s been involved in dozens of depositions, court testimony, and settlement conferences throughout his 29-year career with the Corps, including one case that took over six years to resolve. The case started out with a request for a $50,000 penalty, plus restoration; and ended up with a $1M dollar penalty, a $300,000 cleanup for asbestos, site restoration, and the violator spending over $1M dollars in attorney's fees. The contractor was also banned for life from working on any future government contracts.
One of the nearby areas that the Illinois Department of Natural Resources (IDNR) owns as a result of one of our cases with the U.S. Attorney's Office is the Black Crown Marsh State Nature Preserve in Lakemoor, Illinois. It’s home to several threaten and endangered bird species. And it’s managed by Brad Semel of IDNR, a participant in the court depositions and testimony on the government's behalf.
“All of this could not have been accomplished without the cooperation and working relationships we developed with our federal, state, and county partners within the six northeastern Illinois counties that made up our original district boundary,” Machalek said. “It’s our office’s job to protect the waters of the United States. And if anyone is unsure about whether a permit is needed or not, it’s simple. Just give us a call.”
For more information about the district’s Regulatory Branch and how and when to obtain a permit, go to https://www.lrc.usace.army.mil/Missions/Regulatory/