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Enforcement

John Hubenka and LeClair Irrigation District Clean Water Act Settlement

Company Overview

The settlement agreement in this matter resolves a Clean Water Act (“CWA”) civil judicial action against John Hubenka and LeClair Irrigation District (“LID”) for unlawful discharges into the Wind River in Fremont County, Wyoming. LID operates an irrigation system that diverts water from the Wind River. Mr. Hubenka was employed by LID as its operations manager from approximately 1986 through 2011. The impacted portion of the Wind River is located approximately 18 miles upstream from Riverton, Wyoming and south of land owned Mr. Hubenka.

In addition to resolving the CWA civil judicial action, the settlement agreement also resolves litigation in the Shoshone and Arapaho Tribal Court and in the District Court of Wyoming on related matters.

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Violations

In 2000, Mr. Hubenka discharged dredged and/or fill material into the Wind River by constructing a series of dikes in the river without first obtaining a CWA Section 404 permit from the Army Corps of Engineers (“Corps”). Construction of the dikes facilitated the changed flow of the Wind River from its north channel to its south channel, which rendered over 300 acres of tribal land inaccessible to the Northern Arapaho and Eastern Shoshone Tribes (“Tribes”) and impacted the health of fisheries and wildlife habitat in the area.

In 2004, Mr. Hubenka was criminally convicted of violating CWA Section 301 for knowingly discharging pollutants into waters of the United States without a permit at three locations. He was sentenced to one year probation and ordered to remove the three dikes and restore the riverbed. Mr. Hubenka obtained release from his probation, but never removed the three dikes from the river.

In order to obtain relief, the United States filed a civil complaint against Mr. Hubenka in 2010. The civil complaint sought injunctive relief and civil penalties for illegal discharges associated with the construction of four dikes – the three dikes at issue in the criminal case and a fourth dike discovered after the criminal indictment. Shortly thereafter, the Tribes joined the case as Plaintiff-Intervenors, and in 2011, the United States filed an amended civil complaint naming LID as an additional defendant based on LID’s role in the illegal discharges associated with the construction of one of the dikes. 

The case was the subject of a two-week trial in 2012. In 2014, the court ruled in favor of the United States and the Tribes, ordering removal of the dikes, restoration of the riverbed, and civil penalties.   

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Injunctive Relief

The injunctive relief requirements of the settlement agreement will restore channel alignment of the Wind River and reposition flow back into its north channel. The injunctive relief requirements will also repair floodplain ecology on the banks of the north channel and accelerate passive restoration of riparian lands and wetlands lost or damaged within the south channel.

Under the settlement agreement, responsibility for restoration of the Wind River is as follows:

  • Dike 1 – The Northern Arapaho Tribe will use money, paid by LID’s insurance company, to perform the restoration work associated with Dike 1. This work includes the construction of a rock revetment to restore the right bank alignment of the Wind River and restoration of channel profile, geometry, and historic flow in the north channel.
  • Dike 2 – Mr. Hubenka will perform the restoration activities associated with Dike 2. This work includes removing the remaining material comprising Dike 2 and restoring a flat bench within the dike footprint at the elevation of the adjacent vegetated floodplain. It also includes restoration of the enlarged southern channel adjacent to Dike 2, which will effectively restore the floodplain and functionality of the north channel in that area.
  • Dike 3 – Mr. Hubenka will perform the restoration activities associated with Dike 3. This work includes removing the remaining material comprising Dike 3 and restoring a flat floodplain to a specified design elevation. Some of the removed material will be used to enlarge a point bar on the riverbank upstream of the dike where channel width is excessive. Mr. Hubenka will also remove a depositional bar that has formed adjacent to the north channel across from Dike 3.
  • Dike 4 – Mr. Hubenka will perform the restoration activities associated with Dike 4. This work includes removing the remaining material comprising Dike 4 and restoring a flat floodplain to a specified design elevation.
  • The Northern Arapaho Tribe will also perform supplementary activities intended to restore floodplain ecology on the banks of the north channel of the Wind River and to accelerate passive restoration of riparian lands and wetlands lost or impaired within the south channel. 

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Pollutant Reductions

In CWA cases involving the unauthorized discharge of dredged and/or fill material, EPA measures pollution reduction based on the number of acres mitigated for wetlands or the number of linear feet mitigated for streams. The injunctive relief requirements in the settlement agreement will mitigate the impacts caused by Mr. Hubenka and LID to approximately 15,840 linear feet of stream. Consequently, the pollutant reduction in this case is 15,840 linear feet.   

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Health and Environmental Effects

To protect our water resources, the CWA generally requires projects like dikes and dams to be reviewed in advance to determine whether they should be permitted, and if so, with what protective measures. The Corps typically performs this review to ensure that the proposed construction does not harm the existing water body, its fish and other aquatic life, or the interests of people who live nearby who could be adversely affected by unpermitted alterations.        

In this case, construction of the dikes, which altered the flow of the Wind River from its north channel to its south channel, cut off tribal access to grazing lands and precluded other tribal uses such as fishing and hunting. It also resulted in an extensive loss of riparian lands, including wetlands, due to erosion. The destroyed riparian area caused a loss of wildlife habitat and degradation of downstream water quality. 

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Civil Penalty

Within 30 days of entry of the settlement, Mr. Hubenka is required to pay civil penalty of $4,250. If Mr. Hubenka fails to execute completion of all his restoration obligations by December 15, 2016, he will be required to pay an additional $38,250 due by December 31, 2016. 

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Comment Period

On July 11, 2016, the parties in the CWA civil judicial case, filed a joint motion with the U.S. District Court for the District of Wyoming, asking the court to enter a proposed order, negotiated among the parties, amending the court’s opinion and judgment.  The proposed order is subject to a 30-day public comment period and final court approval. Information on submitting comment is available at the Department of Justice website.

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For more information, contact:

Wendy Silver
Senior Attorney
U.S. EPA, Region 8 (8ENF-L)
1595 Wynkoop St.
Denver, CO 80202-1129
(303) 312-6637
silver.wendy@epa.gov

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