Developers in violation of Clean Water Act

The U.S. Army Corps of Engineers has issued a cease and desist order to Jolene Dugan and Roger Sortino for their work in the wetlands along Flathead Lake in Bigfork. 

The Notice of Violation was sent on May 11 and was stamped received on May 14.

The Bigfork Eagle was provided a copy of the letter by attorney Donald Murray, who represents the Community Association for North Shore Conservation, which is involved in litigation against Flathead County over Sortino’s and Dugan’s construction of a bridge to their privately owned Dockstader Island.

The letter from the Corps cited violations of the Clean Water Act, which prohibits the discharge of dredged or fill material into waters without authorization from the Department of the Army.

“Information we have indicates that earthen or gravel fill, and structural planking material acting as fill, was placed in Flathead Lake and adjacent wetlands,” the letter reads. “It appears that a road approximately 15 feet to 30 feet wide and approximately 1,000 feet long was constructed in waters of the U.S. without prior authorization. The work appears to be associated with the construction of a bridge and road to an island in Flathead Lake. This action discharged dredge or fill material into jurisdictional waters of the United States.”

Waters of the United States are defined as rivers, streams, ditches, coulees, lakes, ponds tributaries and wetlands adjacent to those waters. Earlier this spring, wood planks were placed across the lakebed near Dockstader Island, and a gravel road was constructed, on property owned by Sortino and Dugan, to create a temporary roadway to help hold heavy construction equipment being used to complete the bridge from the north shore to the island. 

Section 404 of the clean water act established a program that regulates the discharge of dredge or fill material into water and wetlands.

When applying for a permit for a project that will put fill in waters or wetlands, the applicant has to show that steps have been taking to avoid impacts to wetlands or other aquatic resources, and that potential impacts have been minimized and that compensation will be provided for all remaining unavoidable impacts.

Proposed activities are regulated by the Army Corps of Engineers through a permit review process. Individual permits are required for potentially significant impacts and are reviewed by the U.S. Army Corps of Engineers, which evaluates applications under a public interest review as well as environmental criteria.

The letter issued by the Army Corps to Dugan and Sortino declared the work on their property in violation of the Clean Water Act, and ordered “any activity related to the placement of unauthorized dredge or fill material into any waters of the United States,” be stopped. The letter specifically stated that it did not prohibit activities that do not place fill into the water.

The letter says to resolve the matter any fill material placed without a permit should be removed, and the area restored to “pre-project conditions.”

The letter requests a written response within 15 days, which details all of the unauthorized work, as well as what actions were taken to reduce effects of the work performed on the bull trout population, and bull trout habitat.

Community Association for North Shore Conservation Chair Dave Hadden said that over the weekend the wood planking that was placed in the lakebed was moved closer to the shoreline. 

“In the process of doing that they completely ripped up the beach,” Hadden said.

Hadden is also concerned that as lake levels are rising, the disturbed silts of the lakebed will adversely affect water quality of the lake.

“The damage is really significant now,” he said. “There’s going to be a water quality issue.”

As of Tuesday, the wood planking remained and work was ongoing on the bridge.