Another Bettendorf developer has been fined for repeatedly failing to halt erosion of soil from a residential development into a nearby creek.
Robert Fick, vice president of Mel Foster Properties and developer of the Century Heights Phase III subdivision, agreed to a $5,000 fine under a consent agreement with the Iowa Department of Natural Resources (IDNR).
The case dates back to two storm water runoff violations near Hess Court and Criswell Street that occurred Dec. 28, 2021 and June 23, 2022.
The order was filed November 16, nearly two years after the initial violation and nearly a year and a half after the second notice of violation was sent the developer.
IDNR's attorney handling the cases said the lengthy delay between the violations and consent order resolution was a result of it taking time to resolve the matter through the legal process.
Bettendorf city officials received a complaint Oct. 27, 2021 alleging storm water from the subdivision construction site was discharging into an unnamed tributary of Pigeon Creek.
When IDNR staff along with city inspectors visited the site Dec. 7, 2021 they found a portion of a sediment basin berm had been removed, allowing storm water to drain out of the basin and toward the creek.
"(The) silt fence located along the flow path from the southwest basin to the creek was covered in sediment and could no longer retain sediment," according to the IDNR inspector. "Approximately 100 feet south of the southwest basin silt fence had been flattened by construction equipment and this equipment had been driven through the creek bed."
When the IDNR returned to the site a week later, repairs had been made to two sediment basins and the northern portion of the site "was in good condition."
But the report went on to state "the southwest basin had a portion of the berm removed and a flow path of sediment was observed from this area down slope over land to the creek."
A week later, the IDNR returned to the site to conduct a National Pollution Discharge Elimination Permit (NPDES) inspection and met with the firm hired by the developer to provide storm water management services.
The inspection report found similar problems cited earlier: a portion of the berm removed with sediment flowing over land to the creek; silt fence overwhelmed by the sediment flow; portions of the silt fence driven over by construction equipment; and sediment laden storm water observed on adjacent property.
The storm water management company representative stated he would work to remedy the problems found on the site.
On a return visit to the development seven days later on Dec. 22 "the conditions had not changed," according to the IDNR findings.
A notice of violation was sent Century Heights subdivision management Dec. 28.
Then, on March 17, 2022, the IDNR inspection found the creek "was still disturbed and a plume of sediment in the creek was observed at the area that was disturbed. . ."
Again on June 20, 2022, IDNR inspectors observed "numerous areas where the silt fence had been knocked down and/or driven over," and that "matting installed along the slopes of the sediment basin needed to be maintained."
The developer was sent a notice of violation of the NPDES permit June 23, 2022, along with the inspection reports and photographs documenting the violations.
Under the NPDES regulations, deficiencies noted in the inspections "shall be corrected within 72 hours of inspection."
The Iowa Code authorizes the IDNR to assess civil fines of up to $10,000 "administratively" through the consent agreement process.
Here is how the IDNR stated it determined the total fine of $5,000 for the violations:
a. Economic Benefit. 567 IAC chapter 10 requires that the Department consider the costs saved or likely to be saved by noncompliance. 567 IAC 10.2(1) states that “where the violator received an economic benefit through the violation or by not taking timely compliance or corrective measures, the department shall take enforcement action which includes penalties which at least offset the economic benefit.” 567 IAC 10.2(1) further states, “reasonable estimates of economic benefit should be made where clear data are not available.” An economic benefit was obtained through avoiding the cost installing and maintaining adequate storm water erosion and sediment control measures throughout the construction site. This avoided several thousand dollars in materials and labor expenses. Thus, it is reasonable to estimate that $2,000 was saved.
Therefore, $2,000 is assessed for this factor.
b. Gravity of the Violation. One of the factors to be considered in determining the gravity of a violation is the amount of penalty authorized by the Iowa Code for the type of violation. As indicated above, substantial civil penalties are authorized by statute. Failure to properly manage storm water runoff from construction sites degrades surface water quality and deposits excess sediment in water channels. Sedimentation of Iowa’s waterways is a serious problem, and regulatory agencies have recognized that uncontrolled runoff is a significant contributor to these problems. Degraded water quality harms aquatic life, prevents the attainment of state water quality goals, and causes a decline in the quality of life generally. The erosion and sediment controls contained in Century Height’s NPDES permit protect Iowa’s waterways from sedimentation. Such noncompliance thwarts the integrity of the NPDES permit and water quality programs. Therefore, the amount of $2,000 is assessed for this factor.
c. Culpability. Century Height is engaged in the business of development and construction. This is a highly regulated activity and therefore Century Height has an obligation to be aware of the applicable regulations and comply with those regulations. Therefore, the amount of $1,000 is assessed for this factor.
FG80 Holdings, LLC, owned by developer Kevin Koellner, agreed to a $6,000 fine in September for NPDES permit violations that occurred in 2022 and 2023.
CLICK HERE to download the full consent order concerning the Century Heights III storm water runoff violations.
