Streams in the Cumberland River watershed will be cleaner and healthier as a result of a cooperative negotiations between Public Employees for Environmental Responsibility (PEER) and developers that PEER had sued under the Clean Water Act over implementation of wetland and stream mitigation measures required for a “big box” commercial complex.
The Gipson Company and Paddocks Development LP had placed fill material in streams and wetlands at the site, impacting two tributaries of Stoners Creek and eliminating 1.23 acres of jurisdictional wetlands in Mount Juliet, 17 miles east of downtown Nashville. To compensate, their permits required certain mitigation measures, some of which never worked as intended.
As a result of the negotiated settlement contained in a consent decree resolving the litigation, the developer will:
- Remove iron “floc” that appeared after the development and had been clogging the stream;
- Stabilize streambanks and adopt measures to enhance the survival rate of planted trees; and
- Provide funding to a local nonprofit that will complete further restoration projects nearby in the Cumberland River watershed.
“Healthy streams do not have a moon-glow orange complexion,” said Tennessee PEER Director Barry Sulkin, former head of enforcement for the Tennessee Department of Environment and Conservation water pollution program, referring to the iron suspended in the stream. “We are happy that the developers acted as good corporate citizens to work cooperatively with us on a great solution that will restore environmental benefits to the stream system.”
The failure of permittees to follow through on their permit conditions to conduct mitigation has become a major focus of PEER throughout the Mississippi watershed. The PEER effort is called “Yes, Net Loss” to underline that the “no net loss” wetland mitigation strategy (requiring those who impact wetlands to engage in wetland replacement or restoration) isn’t working out in practice.
“If the promised mitigation is not performed it inflicts an environmental double-whammy because you have destroyed natural streams and wetlands and then abandoned the compensatory measures that were supposed to make up for the loss,” Mr. Sulkin said, noting that this was one of several failed mitigation lawsuits PEER has brought in Tennessee, including two pending federal lawsuits against the state Department of Transportation. “Citizen lawsuits such as this are necessary because the state agencies responsible for enforcing these permit conditions are too often AWOL. But when defendants in such suits are willing to cooperate in solving the problem, it’s a win-win for all.”