of the Act, 33 U.S.C. $1362 (5).

17. The discharge of pollutants into navigable waters of the United States without authorization from the Secretary of the Army as provided by Section 404 of the Act is unlawful under Section 301 (a) of the Act, 33 U.S.C. §1311 (a). 18. The Secretary of the Army has not issued a permit pursuant to Section 404 of the Act for the subject activities described in Paragraph 6, above. 19. The fill material which was discharged in wetlands in the subject activities described in Paragraph 6, above, constitute pollutants n within the meaning of Section; 502 (ó) of the Act, 33 U.S.C. §1362 (ó), and the discharge of fill in waters of the United States constitutes a "discharge of pollutants" as defined by Section 502 (12) of the Act, 33 U.S.C. $1362 (12) 20. Based on the above Findings, EPA alleges Respondent to be in violation of Section 301 of the Act, 33 U.S.C. $1311. Respondent admits the jurisdictional allegations of this Order. Respondent neither admits) nor denies the factual allegations contained in this Order concerning its alleged violations. 241 21. Each day that the subject activities remain unauthorized by the Corps pursuant to Section 404 of the Act, 33 U.S. C. $1344, constitutes an additional day of violation of Section 301 of the Act, 33 U.S.C. $1311. III. SETTLEMENT ORDER ANDii i CONSENT Based upon the foregoing Stipulations and Findings, and pursuant to the provisions of Section 309 (a) of the Act, 33 U. S. C. $1319 (a), EPA hereby orders and Respondent hereby consents that: 1. Respondent shall cause no further discharges of dredged or fill material into waters of the United States, including wetlands, except as authorized by a valid permit issued by the Corps pursuant to Section 404 of the Act, 33 U.S.C.$1344. 2. Within 60 days of execution of this Order, Respondent shall have completed the following preliminary restoration measures: a) Removal of the roadway, described in Paragraph 6a of the Findings, which was previously the southern outer dike of the Aguirre Sugar Mill wastewater disposal area. Removal of this roadway shall be conducted in such a manner that the resulting grade of the land is level with the grade of the wetlands located on its north and south sides. Respondent shall have also removed all fill material which has eroded from the roadway onto the adjacent wetlands to the north and south. The fill material which is removed shall be disposed of at an upland (i.e., non-wetland) location, or may be used as backfill for filling drainage ditches as described below. b) Backfilling of all drainage ditches on the Site which are located within the JBNERR or direct runoff into the JBNERR. Backfilling shall be conducted such that the grade of the filled ditches is level with the grade of the land in adjacent wetlands. Material for backfilling of the ditches may include material which was sidecast onto adjacent, cleared areas as described in Paragraph 6c of the Findings, above, or material from removal of the roadway as described in Paragraph 3a, above. Any material imported to the site for backfilling must include only clean soil. 241 c) Removal of all debris, side-casted material, and fill from the entirety of all areas on the Site in which side-casting of excavated soils, spreading of soils and vegetative debris, and/or discharge of fill has been conducted during the three years preceding issuance, and/or subsequent to issuance, of the Cease and Desist Order for the subject activities on May 5, 1995. Respondent shall have leveled the grade of these areas in their entirety to the grade of adjacentwetlands. These preliminary restoration measures may be supervised, and/or inspected upon their completion by EPA or by representatives of DNER, the Corps, FWS, or NRCS, acting on EPA's behalf. If the completed work is deemed by EPA to be in non-compliance with the conditions of this Paragraph, EPA may direct further fill removal or regrading, and Respondent shall complete this work, as directed, within 7 days. 3. Within 30 days of commencement of the first local wet season (which commencement shall be the first day of May of any given year) following completion of the preliminary restoration measures described above, Respondent shall have seeded all areas described in Paragraphs 2b and 2c, above, by spreading mangrove propagules over the entire areas. Mangrove propagules shall be of the species Avicennia ~erminans and/or Laauncularia racemosa. 4. Within 3 mónths of execution of this Order, Respondent shall submit to EPA a plan for creation of new mangrove wetlands at a site, to be referred to hereafter as the Compensatory Mitigation Site (ECUS"), no smaller than two acres, which is not presently waters of the United States. The plan must include sealed engineering drawings describing measures that Respondent will take to excavate and regrade the CMS such that the area will have proper hydrology for growth of mangroves. If so directed by EPA, Respondent shall revise this plan or submit a new plan with an alternative site, as per EPA's -instructions, and resubmit it to EPA within 30 days of receiving EPA's directions for such revisions. 5. Within 60 days of written approval of the plan or of the revised plan by EPA, Respondent shall have completed excavation and regrading of the CMS as described in the EPA-approved plan. 241 6. Within 30 days of commencement of the first local wet season (which commencement shall be the first day of May of any given year) following completion of excavation and regrading, Respondent shall have planted the CMS in its entirety with mangrove seedlings at a density of one every three feet. Respondent shall have also spread mangrove prop les ouster the EMS in its entirety. Mangrove seedlings and propagules shall be of the species Avicennia germinans, Laguncularia racemosa, or Rhizophora mangle, as appropriate to the location. Seedlings shall be approximately one-year-old, and if the CMS is in an area inundated daily by the tides they shall be acclimated to seawater for no less than thirty days prior to planting. 7. Within 6 months of written approval of the plan or of the revised plan by EPA, Respondent shall have arranged for and successfully completed transfer of title of the property on which the CMS is located to DNER, and the property shall have been legally incorporated into the JBNERR with a special stipulation that the CMS be protected in perpetuity as a natural area. 8. Within 30 days of planting and/or seeding, Respondent shall submit baseline monitoring reports to EPA for each of the areas restored on the Site and for the mangrove wetland created in the CMS. Each baseline monitoring report shall include color photographs of the subject area, and as-built drawings showing the actual planting array, species of mangroves planted, and number of seedlings planted. 9. In the sixth month following the date of submittal of each baseline monitoring report, and in each sixth month -thereafter for a minimum of 5 years, Respondent shall submit to EPA á follow-up monitoring report for each of the areas restored on the Site and for the mangrove wetland created in the CMS. Each follow-up monitoring report shall include color photographs of the subject area, and information on percent survival of mangrove seedlings and/or percent coverage of the area with mangroves, and the approximate average height of mangroves. It shall also include a description of any sub-areas within the areas, where percent survival and growth-of mangroves has been substantially lower or higher than average. Each follow-up monitoring report shall provide the dates on which photographs were taken and information was 241 collected. These dates must be within the 30 days preceding submittal of-the follow-up report. 10. Respondent shall make every attempt to ensure that all reation/ restoration of wetlands pursuant to this Order will result in self-sustaining, healthy, functioning mangrove wetlands. The created/restored mangrove wetlands shall be deemed such if, for three consecutive years, greater than 80t of the planted seedlings survive or the wetlands exhibit greater than 80t coverage with healthy mangrove vegetation. At any time, EPA may order regrading and/or replanting and reseeding of all or part of the created/restored wetlands for the purpose of ensuring that these conditions will be et. Survival of less than 80~- of planted seedlings or percent coverage of less than 80` with healthy mangrove vegetation shall be cause for ordering such regrading and/or replanting and reseeding. Semiannual follow-up monitoring reports shall continue to be submitted to EPA for each area of created/restored wetlands, including the CMS, until such time that greater than 80 of the planted seedlings survive or the wetlands exhibit greater than 80 coverage with healthy mangrove vegetation over a period of three consecutive years within that created/restored area. 11. With regard to the areas on the Site restored pursuant to Paragraph 3, above, if it is mutually agreed by EPA and Respondent that mangroves are not growing and will not grow successfully in any or all parts of these areas, and Respondent has made every attempt to ensure successful growth of mangroves there, EPA and Respondent shall negotiate an agreement for restoration of these areas as wetlands Of a type other than mangrove wetlands. In this case, the monitoring and success requirements described in Paragraphs 9 and 10, above, shall remain in effect (i.e., semi-annual monitoring reports must be submitted to EPA for each area until such time that greater than 80 of the planted seedlings survive or the wetlands exhibit greater than 80 coverage with healthy wetlands vegetation of the type intended for a period of three consecutive years within that created/restored area) ; and at any time, EPA may order regrading and/or replanting and reseeding of all or part of these created/restored wetlands for the purpose of ensuring that the success requirements will be met. 241 12. As compensation for temporary impacts to waters of the United States which have occurred due to the unauthorized activities which are the subject of this Order, Respondent shall comply with Paragraphs 13 through 21, below. 13. Within 60 days of-execution of this Order, Respondent shall physically post the boundary between Hacienda Aguirre and the JBNERR with signs explaining that the posted area is a protected wildlife conservation area. The exact spacing between signposts and language of this signage shall be determined jointly by Respondent, DNER, and EPA. 14. In consultation with EPA and DNER, Respondent shall prepare a comprehensive hydrologic study of the Site which describes, at a minimum: precipitation, irrigation practices, surfacewater and groundwater sources and movement, and surfacewater and groundwater withdrawals for agricultural or other uses, at the Site from both a historical and current perspective. The study shall be designed such that it will provide information useful for determining the expected impacts of hydrologic alterations a. the Site on the neai~n or the mangrove forest, and for determining what measures could be taken to provide drainage to the agricultural fields without causing direct or indirect impacts to the health of the mangrove forest. The hydrologic study shall be completed within 6 months of by execution of this Order, and shall be submitted immediately upon completion to EPA and DNER. EPA shall review the completed hydrologic study and provide comments on it to Respondent and DNER. 15. Respondent shall construct a vegetated filter strip consisting of emergent herbaceous wetlands in the area located between the agricultural fields and the mangrove forest at the Site. Prior to construction of the filter strip, Respondent shall submit to EPA sealed engineering drawings showing its proposed location and dimensions. These drawings shall be submitted to EPA within 60 days after receipt of EPA's comments on the hydrologic study. If SO directed by EPA, Respondent shall revise these drawings and/or alter the proposed location of the filter strip as per EPA's instructions and resubmit the drawings to EPA within 14 days of receiving EPA's directions for such revisions. Construction of the filter strip shall commence no later than 60 days after receipt of EPA approval of these drawings, and shall be completed within 241 30 days thereafter. The filter strip shall be designed such that it provides drainage to the agricultural fields, absorbs pollutants from run-off water from the agricultural fields, and does not interfere with necessary surfacawater or groundwater input to the mangrove forest. 16. Prior to completion of construction of the vegetated filter strip, Respondent shall prepare a plan for monitoring hydrology and agricultural pollutants within and to the north and south of the filter strip for a period of no less than 5 years. This plan shall be submitted to EPA prior to completion of construction of the filter strip. If SO directed by EPA, Respondent shall revise this plan as per EPA- S instructions and resubmit it to EPA within 14 days of receiving EPA's directions for such revisions. Respondent shall be responsible for conducting monitoring for 5 years in accordance with the monitoring plan and shall submit monitoring reports to EPA and DNER in accordance with this plan. 17. Construction of the filter strip-shall not be undertaken if it is determined by EPA, based upon information from the hydrologic study described in Paragraph 14, above, or other information sources, that such construction would have An adverse-impact upon the mangrove forest or other waters of the United States. In this case Respondent shall be required to complete or conduct some alternative project of equivalent scope which would compensate for temporary impacts to waters of the United States which have occurred due to the unauthorized activities which are the subject of this Order. This alternative project would be designed and developed in consultation with EPA and DNER, with the possible assistance of NRCS, FWS, and the Corps, and must be approved in writing by EPA prior to its commencement. 18. At least 2 days prior to initiation of any and all physical work pursuant to this Order, Respondent shall notify EPA orally as to the dates on which the work will be conducted so that EPA may arrange to have a representative present to oversee the work. Such representati individual from EPA, DNER, the Corps, FWS, or NRCS. 19. Representatives of EPA, DNER, the Corps, FWS, and/or NRCS, shall be provided access to the Site, the CMS, and the location of thy filter strip at reasonable times and frequency from the date of execution of this Order until all conditions of this Order have been fulfilled to the satisfaction of EPA. 241 20. If Respondent cannot comply with any of the deadlines or requirements in this Order, Respondent shall, upon learning of the delay or cause for a delay, promptly notify EPA orally and shall, within 7 days of such oral notification, notify EPA in writing of the anticipated length and cause of the delay, the measures taken by Respondent to prevent or minimize the delay and a timetable by which Respondent intends to implement these measures. If EPA and Respondent agree that the delay is caused by circumstances beyond the reasonable control of Respondent, such as an Act of God or third parties not under the direction of Respondent or the need to obtain necessary permits or approvals where Respondent made all reasonable efforts to timely obtain said permits or approvals, the time for performance hereunder may be extended at the sole discretion of EPA for a reasonable period. Neither increased costs or expenses associated with the implementation of this Order nor changed economic circumstances shall be the basis for an extension of time to achieve compliance with this Order. 21. Rejection or denial of any permits or approvals necessary for performance of the Provisions of this Order shall not relieve Respondent of the requirements of this Order, but rather shall necessitate performance by Respondent of equivalent activities FIR Ordered by EPA. 22. EPA, at its sole discretion, may at any time instruct Respondent to temporarily suspend implementation of any or all parts of this Order. The cause for such instruction may include, among others, the disclosure of the existence or possible existence of chemical or other contamination within an area or areas where work will be, or is being, conducted pursuant to this Order; or the determination by EPA based on new information or reassessment of existing, information that the work to be conducted or being conducted by Respondent pursuant to this Order may adversely impact waters of the United States. This instruction will be made by EPA in writing, or orally with confirmation in writing within 7 days. If instructed by EPA to temporarily suspend work, Respondent shall immediately comply with such instruction. Respondent shall resume implementation of this Order when and if instructed to do SO by EPA in writing no later than 7 days after receipt of such instruction from EPA. 23. All written information required to be submitted to EPA 241 pursuant to this Order shall be sent by certified mail, return receipt requested, to: Mr. Walter Andrews, Chief Water Programs Branch U.S. Environmental Protection Agency, Region II 290 Broadway, 24th Floor New York, New York 10007-1866 Oral notification to EPA pursuant to this Order shall be made to Mr. David Pohle of the EPA, Region II, Wetlands Protection Section at (212) 637-3824, or Mr. Daniel Montella, Chief of the EPA, Region II, Wetlands Protection Section at (212) 637-3783. 24. Upon execution of this Order, EPA will immediately mail a copy to the U.S. Army Corps of Engineers, Jacksonville District, Antilles Regulatory Section, in San Juan, Puerto Rico. 25. Respondent's compliance with the Provisions of this Order shall resolve the alleged violation of Section 301 of the Act, 33 U.S.C. $1311, set-forth in the Stipulations and Findings, above. V. GENERAL PROVISIONS 1. The provisions of this Consent Order shall be binding upon Respondent, its officers, directors, agents, servants, employees and successors or assigns. 2. This Consent Order does not constitute a waiver, suspension or modification of the requirements of the Act, 33 U.S.C.-id $1252 et Sect, or any regulations promulgated thereunder, or any state or local law or regulation. This action is taken by EPA to ensure swift compliance with the Act. Issuance of this Consent Order is not an election by EPA to forego any civil or any criminal action otherwise authorized by the Act. 3. Mitigation provided pursuant to this Consent Order, whether in the form of restoration of impacted wetlands, compensatory mitigation, or construction of a vegetated filter strip or similar structure, shall not be offered by Respondent or any other person for consideration as 241 mitigation for any other fill, existing or proposed, for which Respondent or another person may seek a permit from the Corps under Section 404 of the Act. EFFECTIVE DATE This Consent Order shall become effective upon the date of execution by the Director, Division of Environmental Planning and Protection, EPA, Region II. In the Matter of Puerto Rico Land Authority Docket No. EPA-CWA-II-96-46 For Respondent, Puerto Rico Land Authority: Date: June 27, 1997 FERNANDO MACHADO ECHEVARRIA, ESQ. Executive Director m. For U.S. EPA: Date: 7/25/97 KATHLEEN - Director CALLAHAN Division of Environmental Planning and Protection U.S. EPA, Region II