MEMORANDUM OF UNDERSTANDING RESOLVES CRIMINAL INVESTIGATION & NATURAL RESOURCE DAMAGES CLAIMS AGAINST ST. JOHNS RIVER WATER MANAGEMENT DISTRICT

WASHINGTON, D.C. - Thomas Sansonetti, Assistant Attorney General for the Justice Department’s Environment and Natural Resources Division and Paul Perez, U.S. Attorney for the Middle District of Florida, announced today a Memorandum of Understanding (MOU) with the St. Johns River Water Management District resolving a criminal investigation and natural resource damages claims.

The MOU resolves criminal charges against St. Johns River Water Management District under the Migratory Bird Treaty Act (MBTA), the Endangered Species Act (ESA), and the Bald and Golden Eagle Protection Act, as well as civil claims for natural resource damages under the Comprehensive Environmental Response, Compensation and Liability Act.

The District’s alleged liability stemmed from its conduct from the fall of 1998 through the spring of 1999 when over a thousand migratory birds, including endangered wood storks, died in and near the northern shore of Lake Apopka in Central Florida. The MOU has no effect on whether or not restoration in any form may proceed at the site; any restoration must comply with, among other things, existing legal prohibitions against taking migratory, threatened or endangered birds.

The birds died in and around farm fields that had been in production since the 1940s when part of Lake Apopka was drained to create muck farms. Use of phosphate fertilizers and pesticides on these farms, among other things, resulted in severe degradation of the water quality in Lake Apopka. Shortly before the birds began to die, the District began purchasing these muck farm properties as part of a program to reduce phosphorus deposition and restore Lake Apopka. The District sold 30-year conservation easements on much of this property to the Natural Resource Conservation Service of the U.S. Department of Agriculture.

In early November, 1997, a risk assessment was completed for the first large parcel purchased that found, among other things, that the levels of the now banned pesticide DDT and toxaphene on the property presented an increased risk for birds eating fish from any restored wetlands on the site. These and other organochlorine pesticides were detected at relatively higher levels on the second group of properties purchased. A comparative study conducted on this group of properties addressed only DDTs and toxaphene but omitted full assessment of other pesticides such as dieldrin. The comparison study nevertheless reached conclusions similar to those of the risk assessment.

Despite this information, in the late summer to fall of 1998, during peak migration, the District directed the shallow flooding of these two large sections of the properties. Over a thousand migratory birds died on or near the properties. Certain organochlorine compounds, including dieldrin, toxaphene and DDT and its metabolites, located on the flooded farm properties were primary causative factors in, or the cause of, the bird deaths.

The provisions related to the criminal investigation are found in Sections I-IV and VIII. In sum, the St. Johns River Water Management District is required to:

(1) bring all of its properties into compliance with the ESA and other wildlife statutes;

(2) reimburse the wildlife rehabilitators that worked on affected birds the approximately $90,000.00, collectively, that they expended in this effort;

(3) run a conference to educate other Water Districts regarding the wildlife laws;

(4) make certain acknowledgments regarding the cause of death of the birds and its role therein;

(5) provide training to its employees;

(6) conduct a five-year program to monitor pesticide levels in Lake Apopka;

(7) monitor wood stork populations on its properties for five years, and;

(8) develop an active management plan for threatened or endangered species on at least 200 acres of its properties.

The United States agrees not to file criminal charges against St. Johns River Water Management District for wildlife violations, provided that it does not materially breach the relevant terms of the MOU.

The Natural Resources Damages provisions are found in Sections V though VIII. During the preparation of the required Damage Assessment and Restoration Plan for the resolution of these claims, an opportunity arose for the district to purchase an undeveloped 8,465 acre tract of land in St. Johns County, Florida (the Matanzas Marsh property) that contained one of the two largest wood stork colonies in Northeast Florida. Because immediate action was required to obtain the property, the district coordinated the purchase of the land prior to completion of the Damage Assessment and Restoration Plan. The District undertook this action with the understanding that the United States was not obligated to determine that purchase of the Matanzas Marsh property and protection of the wood stork colony would satisfy the District’s obligation for natural resource damages.

The Damage Assessment and Restoration Plan -- funded by the St. Johns River Water Management District -- has been completed, and U.S. Fish and Wildlife Service has concluded that purchase of the Matanzas Marsh property, along with protection of the wood stork colony is its preferred alternative. Therefore, the MOU contains obligations to ensure the monitoring and management of the wood stork colony.

It also provides that the District will pay $26,868.11 in past costs incurred by the Department of the Interior in connection with the damage assessment and future costs up to $1,500 per year to fund the Interior’s participation in the monitoring of the Matanzas Marsh wood stork colony. In addition, the District has agreed to pay $14,776.30 to the U.S. Fish and Wildlife Service to fund an update of the existing habitat management guidelines for the wood stork and an additional $10,450.00 to fund a study of eggshell thinning.

The Memorandum of Understanding contains a covenant not to sue, with reopeners. If the St. Johns River Water Management District breaches the agreement during the first five years after execution of the Memorandum, the United States would be able to bring an action against it for natural resource damages. The Memorandum further provides that the Damage Assessment and Restoration Plan will be subject to public comment, and that U.S. Fish and Wildlife Service may withdraw from the natural resource damage provisions of the MOU if public comments disclose facts or considerations which indicate that the actions set forth in the MOU are not appropriate compensation for the injuries to natural resources.

The investigation of this case was lead by Special Agents of the U.S. Fish and Wildlife Service with cooperation and assistance from the Florida Fish and Wildlife Conservation Commission; the Brunswick, Georgia Ecological Contaminants Division of the U.S. Fish and Wildlife Service; and the National Wildlife Health Center of the U.S. Geological Survey. The case was prosecuted by the U.S. Attorney’s Office, Middle District of Florida, and the Wildlife and Marine Resources Section and the Environmental Enforcement Section of the U.S. Department of Justice.

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