Frederick W. Hertrich - III - et al. Settlement

(Philadelphia, PA - September 28, 2012) - The U.S. Environmental Protection Agency announced today that Frederick W. Hertrich III and his project manager, Charles Ernesto, will jointly pay a $100,000 penalty for alleged violations of the Clean Water Act at a site in Federalsburg, Caroline County, Md.

On this page:

• Overview
• Violations
• Health and Environmental Effects
• Injunctive Relief
• Pollutant Reductions
• Civil Penalty
• Comment Period
• Contact

Overview

The proposed Consent Decree in this matter resolves a civil judicial action against Frederick W. Hertrich, III and Charles Ernesto (collectively, “Defendants”) for Clean Water Act (“CWA”) violations involving the unauthorized discharge of dredged and/or fill to waters of the United States on property owned by Mr. Hertrich in Federalsburg, Maryland. The site consists of two adjoining parcels of land, referred to as the Northern and Southern Parcels, which collectively total 183 acres. At the time Mr. Hertrich purchased the Northern Parcel, he was already operating a horse farm that specializes in breeding race horses on the Southern Parcel.

Violations

In December of 2004, Mr. Hertrich contracted with a lumber company to harvest and purchase the timber on approximately 81 acres of the site. The harvesting work consisted of logging and chipping and was authorized by the Maryland Department of the Environment (“MDE”). MDE did not, however, authorize a discharge of fill on the site. Mr. Hertrich then hired Gregory D. Bee to clear the area of left over brush and debris, grade it, and otherwise prepare it for seeding in order to create additional pastureland for the horse farm. This work impacted approximately 56 acres of wetlands on the site. Mr. Bee was directed and supervised by Charles Ernesto, Mr. Hertrich’s property manager. By filling wetlands without first obtaining a permit under Section 404 of the CWA from the Army Corps of Engineers, the Defendants and Mr. Bee violated Sections 301 and 404 of the CWA. The United States resolved its claims against Mr. Bee in a separate settlement. 

Health and Environmental Effects

The Defendants’ activities resulted in impacts to approximately 56 acres of wetlands directly abutting Houston Branch, a tributary of Marshyhope Creek in the Chesapeake Bay watershed. 

The Chesapeake Bay is one of the most productive ecosystems on earth, and the largest estuary in the United States. Many of the Chesapeake Bay's living resources depend on wetlands for their survival. Large flocks of migratory ducks, geese and swans spend winters using the marshes for feeding and cover. Healthy and abundant wetlands in the Chesapeake Bay watershed help mitigate the negative consequences of other land uses in the bay, thus helping keep the waters clean so they can support a healthy bay grass and fisheries population.

As a haven for boating, fishing, crabbing, waterfowl hunting, hiking, birdwatching, wildlife study, photography and canoeing, the wetlands of the Chesapeake Bay contribute to both the ecological health of the bay and have an intrinsic natural beauty. Over 46 million Americans enjoy recreational fishing, while 5 million hunt waterfowl, both wetlands related activities.

By filling the wetlands on the site, the Defendants likely increased sediment and silt runoff to Houston Branch. Sediment and silt runoff can smother habitat for aquatic organisms and degrade water quality downstream. Filling wetlands reduces flood storage and consequently increases downstream flood risk. Increased water flows exacerbate channel erosion, which in turn increases water turbidity and results in a loss of fish production. In addition, filling the wetlands on the site disrupted the wildlife corridor along Houston Branch.

Wetland fills, such as the one on this site, are widespread and contribute to the degradation of water quality and biological integrity in the Chesapeake Bay. Cumulative wetlands losses across the continental U.S. are estimated to be around 50%. 

Injunctive Relief

Restoration of the 56 acres of wetlands impacted from the Defendants’ unlawful activities was completed in 2010. Pursuant to the proposed Consent Decree, Mr. Hertrich will continue to monitor the progress of the restoration work until 2015. The purpose of the monitoring is to ensure the survival of the newly planted wetlands vegetation.

The settlement also requires Mr. Hertrich to impose a deed restriction over approximately 80 acres of the Site. The deed restriction will permanently preserve the restored wetlands, as well as buffering uplands. The remaining acreage is comprised of an upland buffer that will protect the restored wetlands.

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 of this settlement will mitigate the 56 acres of wetlands impacts caused by the Defendants’ unlawful activities.

Civil Penalty

Within 60 days of the effective date of the settlement, the Defendants will pay a civil penalty of $100,000.

Comment Period

The proposed settlement, lodged in the U.S. District Court for the District of Maryland, is subject to a 30-day public comment period and final court approval. Information on submitting comments is available at the U.S. Department of Justice.

Contact

Melissa Katz
Water Enforcement Division
Office of Civil Enforcement - OECA
(202) 564-5567
Melissa Katz ([email protected])