Cape Gazette

Watchdog group wants DelDOT in court

By Ron MacArthur | May 12, 2009
Transportation officials announced last week ditching work in Prime Hook National Wildlife Refuge violated state and federal permitting regulations.

A criminal complaint against Delaware Department of Transportation (DelDOT) was filed by Public Employees for Environmental Responsibility (PEER) Monday, May 11.

PEER requests U.S. Fish and WildlifeService to conduct an investigation of apparent criminal violations of the Endangered Species Act and Migratory Bird Treaty Act. It also contends the work done in the refuge benefits a state legislator, Rep. George Carey, R-Milford, who owns land adjacent to the refuge. Carey did not return phone calls to his home and office.

“Refuges are supposed to be sanctuaries for wildlife not sandboxes for state legislators,” said PEER staff counsel Christine Erickson. “The fact that a violator is a state highway department does not immunize it from the obligation to comply with federal law.”

According to its website, PEER is a national, nonprofit alliance of local, state and federal scientists, law enforcement officers, land managers and other professionals. All complaints are handled anonymously.

Erickson said it was unclear whether Prime Hook management was aware of the work at the refuge.

Erickson said if U.S. Fish & Wildlife staff does not act within 60 days to bring formal action against DelDOT, her organization could take DelDOT to federal court.

She said the organization receives anonymous tips and phone calls from public employees and concerned citizens about environmental issues; most come from public employees in environmental agencies.

DelDOT work crews had dug drainage ditches along both sides of Fowler Beach Road in the northern section of Prime Hook Beach Road without the required state and federal environmental permits. Work was halted last month. DelDOT was ordered to fill in the ditches and restore the marsh along the road.

“We made an unintentional mistake, and we are doing whatever we can to remediate it,” said Darrel Cole, director of DelDOT public relations.

Cole said no one has identified any environmental damage.

PEER contends work done by DelDOT is more extensive than reported. It includes the opening of three plugged culverts on Fowler Beach Road and the construction of nine new culverts under Prime Hook Beach Road.

PEER’s complaint alleges the culverts allow “significant” saltwater intrusion into two freshwater impoundments.

“Together, the installation of culverts and construction of ditches by DelDOT along both roads has degraded the water quality and freshwater integrity of nearly 4,000 acres of freshwater wetlands,” according to the complaint.

In addition, the department has used rotomill, an asphalt-based material, as shoulder and patching material along Fowler Beach Road. PEER contends the material is toxic and washes into the wetlands with each high tide.

“DelDOT began construction and repair activities on these roads, which has in turn jeopardized and degraded the habitat of many plant, fish, bird and other wildlife species in the refuge,” according to the complaint.

“All of this is contrary to the policies and mission of DelDOT,” Cole said. “We protect the environment, and any allegations to the contrary are ridiculous.”

Cole said Department of Natural Resources and Environmental Control and the Army Corps of Engineers staff are conducting an investigation. He said DelDOT officials would do whatever the agencies request, including restoration and even mitigation of new wetlands. “We are not minimizing our mistake, but to take this up a notch is going overboard,” Cole said.

Criminal offenses outlined in the PEER complaint carry penalties per violation ranging from $15,000 to $500,000 in fines. The complaint cites DelDOT for violating for the Endangered Species Act by significantly degrading the habitat for the Delmarva fox squirrel, a federally listed endangered species.

It charges DelDOT violated the Migratory Bird Treaty Act by destroying habitat of the federally threatened piping plover, state-endangered American oystercatcher, as well as the red knot, ruddy turnstone and nesting bald eagles.

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