Notice of Lodging of Consent Decree Pursuant to the Clean Water Act and the Rivers and Harbors Act

DEPARTMENT OF JUSTICE

Notice of Lodging of Consent Decree Pursuant to the Clean Water

Act and the Rivers and Harbors Act

In accordance with Departmental Policy, 28 CFR 50.7, notice is

hereby given that a Consent Decree in Golden Gate Audubon Society,

Inc., et al. v. United States Army Corps of Engrs. & City of Oakland,

et al., Civil No. C-87-6063-TEH (N.D. Cal.), and consolidated action

People of the State of California, et al. v. Togo West & City of

Oakland, et al., Civil No. C-86-5817-RHS, was lodged with the United

States District Court for the Northern District of California on

September 27, 1994.

The proposed Consent Decree concerns alleged violations of section

301(a) of the Clean Water Act, 33 U.S.C. Sec. 1311(a), and section 10

of the Rivers and Harbors Act of 1899, 33 U.S.C. Sec. 403, as a result

of unpermitted discharges of dredged and fill material into wetlands

and other waters of the United States and the unauthorized dredging of

a channel. The Defendants, Port of Oakland, the Board of Port

Commissioners of the City of Oakland, and the City of Oakland, acting

by and through that Board (herein ``Port Defendants''), allegedly

filled approximately 34 acres of jurisdictional wetlands and other

waters of the United States, including seasonal ponds, at the Port of

Oakland Distribution Center in the City of Oakland, Alameda County,

California during the period 1972-1986. The Port Defendants also

allegedly dredged an unauthorized channel in 1979 through a portion of

the Port of Oakland Distribution Center property, all of which is owned

by the Port Defendants, in violation of section 10 of the Rivers and

Harbors Act of 1899. Additionally, the Port Defendants allegedly

graded, scraped and/or filled approximately 26 acres of Wetlands and

other waters of the United States at the Air Cargo Site, which is

located at the South Field of the Metropolitan Oakland International

Airport in the City of Oakland. A permit authorizing that work was

issued by the Army Corps of Engineers in 1986, but the permit was

subsequently vacated by the United States District Court for the

Northern District of California and, therefore, the work was

unauthorized.

The proposed Consent Decree would require the Port Defendants to

provide substantial mitigation in accordance with a Corps-approved

mitigation/restoration plan. The mitigation project would include the

restoration and/or enhancement of at least 68 acres within a 71-acre

Mitigation Project Site located at the Port of Oakland Distribution

Center and provides for the creation and enhancement of tidal wetlands,

seasonal wetlands, seasonal ponds and other habitat features. The Port

Defendants would be required to make available $2.5 million to finance

the mitigation and post-mitigation activities, to include a 5-year

monitoring program. Upon completion of the mitigation project, the Port

Defendants would be required to transfer title to the 71-acre parcel to

the East Bay Regional Park District (``EBRPD''), a state chartered

regional agency, to assure that no future development occurs on the

Mitigation Project Site. The Consent Decree would also require the Port

Defendants to apply for a permit under section 404 of the Clean Water

Act and section 10 of the Rivers and Harbors Act in order to construct

a new parking area on approximately .1 acre adjacent to the Mitigation

Project Site and to deposit 150,000-200,000 cubic yards of excess fill

material removed from the Site on an undeveloped area of the

Distribution Center property. The new parking area is necessary to

replace a part of the existing parking area which would be destroyed as

part of the proposed mitigation project. Approximately 2.5 acres of

existing wetlands in undeveloped areas of the Distribution Center Site

would be filled under the requested permit to allow for these

activities. Additionally, the previously unauthorized fill material at

both sites would be retained under the authority of Nationwide Permit

32 and the Consent Decree. The proposed Consent Decree would also

require the payment of a $5,000 civil penalty to the United States.

The Department of Justice will receive written comments relating to

the proposed Consent Decree for a period of 30 days from the date of

publication of this notice. Comments should be addressed to Karen

Egbert, Esquire, U.S. Department of Justice, Environmental Defense

Section, P.O. Box 23986, Washington, D.C. 20026-3986 and should refer

to Golden Gate Audubon Society, Inc., et al. v. United States Army

Corps of Engrs. & City of Oakland, et al., Civil No. C-87-6063-TEH

(N.D. Cal.), and consolidated action People of the State of California,

et al. v. Togo West & City of Oakland, et al., Civil No. C-86-5817-RHS,

and should also make reference to DJ# 90-5-1-1-3048.

The Consent Decree, with attachments, may be examined at the

Clerk's Office, United States District Court for the Northern District

of California, 450 Golden Gate Avenue, San Francisco, CA 94102.

Lois J. Schiffer,

Acting Assistant Attorney General, Environment & Natural Resources

Division.

[FR Doc. 94-26296 Filed 10-21-94; 8:45 am]

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