United States v. Bay-Houston Towing Co. (197 F. Supp. 2d 788, 2002)

DECISION ON CIVIL PENALTIES

COHN, District Judge.

I. Introduction

A. Nature of the Case

This is the civil penalty phase of an environmental action brought by the United States at the request of the Environmental Protection Agency (EPA) pursuant to § 309 of the Clean Water Act (CWA), 33 U.S.C. § 1251, et seq. EPA seeks in-junctive relief and civil penalties relating to defendant Bay-Houston Towing Company, Inc.’s Michigan Peat Division’s (Michigan Peat) peat mining activities on 950 acres of land in Minden Township, Sanilac County, Michigan on a parcel known as Minden North, which is part of a 20,000 acre wetland known as the Minden Bog. EPA claims that Michigan Peat has discharged peat bog drainage water containing pollutants through ditch outfalls into the Black River Drain without a permit under § 402 of the CWA (Count I); discharged dredged or fill material into wetlands without a permit under § 404 of the CWA (Count II); and violated an administrative compliance order issued by EPA under § 309 of the CWA, requiring, among other things, that Michigan Peat cease un-permitted discharges and submit a wetlands restoration plan (Count III). EPA seeks to impose a three million dollar civil penalty against Michigan Peat.

For the reasons which follow, which constitute the findings of fact and conclusions of law as required by Fed.R.Civ.P. 52, no civil penalty -will be assessed.

B. The Claims of the Parties

1.

a.

The Joint Final Pretrial Order filed March 5, 2001, generally describes the claims of the parties as follows:

EPA:

1. From 1977 to the present, in its peat mining [Michigan Peat] has discharged pollutants into waters of the United States in violation of § 301 and § 404 by

a. placing field windrows (or piles) of peat at Minden Bog without a permit;

b. placing peat and other materials, dredged and removed from drainage ditches on Minden Bog without a permit; and

c. placing fill materials on Minden Bog, for the purpose of constructing and/or maintaining roads for moving mining equipment without a permit.

2. Michigan Peat has discharged pollutants into the waters of the United States in violation of § 301 and § 402 by

a. discharging effluent waste water without an individual National Pollution Discharge Elimination System (NPDES) permit prior to July 1998.

3.Michigan Peat has violated § 309 by failing to observe the requirements of a February 1998 administrative compliance order that it “immediately cease further discharges” of dredged and fill material, except in compliance with a permit issued under § 404.

As to remedy:

EPA is entitled to injunctive relief and a civil penalty for Michigan Peat’s violations of the CWA. By way of injunctive relief, EPA is entitled to an order requiring Michigan Peat to implement and observe a restoration plan intended (except as otherwise agreed upon by EPA to reestablish peatland conditions at Minden North), in such a way that natural succession will eventually reproduce the objective ombrotrophic bog that previously existed in the mined area of Min-den Bog. As for a penalty the CWA authorizes a maximum penalty of $25,000 per day per violation. For violations which take place after January 30, 1997, the maximum civil penalty under § 309(d) is $27,500 per day. The factors the Court should take into account in assessing a penalty are set forth in § 1319(b). The factors the Court should take into account in approving an appropriate restoration plan are whether: (1) the plan will confer maximum environmental benefits; (2) the proposed plan is achievable as a practical matter; and (3) he proposed plan bears an equitable relationship to the degree and kind of wrong it is intended to remedy.

b.

Michigan Peat:

1. Its peat extraction operations were initially covered by nationwide permit 26 as adjacent to headwaters. As to its drainage ditch and temporary haul roads, they were installed prior to any permit required under § 404 or were covered by nationwide permit 26. In any event, the construction and maintenance of the existing temporary haul roads was and is exempt from a § 404 permit requirement. The maintenance of existing ditches is also exempt.

2. Its storm water management drains do not require an individual § 402 permit and its peat operations do not result in the generation of any process wastewater or the addition of a pollutant to any navigable water of the United States. It received timely coverage of its storm water discharge under § 402 in 1994. At the request of the State of Michigan, the issuing agency for § 402 permits, it also applied for an individual point source § 402 permit early in 1995. Although the permit process was intentionally frozen by the issuing agency in 1997 for no environmental reason, it ultimately received a permit in July of 1998 — shortly after the filing of the complaint.

3. It complied in 1998 with the part of the compliance order requiring it to cease operations and only resumed operations in 1999 after the receipt of the Sixth Circuit’s decision in Michigan Peat v. U.S. E.P.A., 175 F.3d 422 (6th Cir.1999).

4. Since 1990, it has made a good faith effort to obtain permits identified by the government agencies as necessary for its peat mining operation. Even if its maintenance of ditches and roads or the processing of peat in windrows constitute technical violations of § 404, no penalty is warranted or appropriate. Any material in windrows or removed from ditches has been removed from the property.

5. In light of the Supreme Court’s decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers 531 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001) (SWANCC), the Minden North site is not subject to the jurisdiction of § 404.

2.

a.

More particularly, EPA asserts:

— Michigan Peat systematically collected channeled surface water runoff and peat bog drainage water into the Black River Drain and hence into the Black River and then to Lake Huron (into the waters of the United States) without an NPDES permit as required by § 402 beginning in 1972.

— Michigan Peat had no authority under federal law to discharge dredged or fill material on any portion of the wetlands constituting the Min-den Bog without a valid permit under § 404. Michigan Peat’s long term peat mining on the 951 acres it owned or controlled in the Minden Bog was unlawful particularly because it proposed post-mining reclamation/restoration plans required by § 404 to the State of Michigan in bad faith. Michigan Peat systematically and persistently took measures to avoid reclamation of the wetlands it was mining peat from after assuring the State of Michigan, and EPA, of its intention to devise such plans.

— Michigan Peat received a bona fide administrative compliance order from EPA in February 1998 and has failed to comply with it.

— for peat mining without a valid NPDES permit until 1998 and without a valid § 404 permit, Michigan Peat should suffer a civil penalty of three million dollars.

— Michigan Peat should be required to reclaim and restore depleted wetlands.

b.

More particularly, Michigan Peat asserts:

— Michigan Peat’s predecessor in interest began mining peat in Minden Bog in 1958 after purchasing land from the State of Michigan for this express purpose. Michigan Peat beginning mining peat in Minden Bog in 1964 after leasing the land from its predecessor. Mining peat by Michigan Peat and its predecessor in Min-den Bog has been continuous since 1958.

— Its activities for the five years preceding the filing of suit by EPA and longer, have been conducted under circumstances where an application for a required § 404 permit was pending and, after withdrawal of State of Michigan authority, under a color-able claim that it had a State of Michigan permit. Only after January 12, 2001 did it no longer have a colorable claim to a § 404 permit.

— At all times during the five years preceding the filing of suit by EPA it had pending an application for a § 402 permit and within six months following the issuance of the administrative order it received a § 402 permit.

— As to its conduct following issuance of the administrative order to cease mining peat and the filing of suit, at no time, although invited to do so, did EPA ask the Court to stop peat mining on the grounds of irreparable injury.

3.

Michigan Peat does not dispute its obligation to do something about the mined areas (sometimes referred to as depleted or exhausted) and to conduct its peat mining activities with a view to some form of reclamation/restoration in the future. The crux of the dispute between EPA and Michigan Peat lies in what is to be done with the mined portions of the 950 acres and what is to be done with the balance of the 950 acres once peat mining ceases or as to portions on which peat mining ceases in the course of future mining. The fact that Michigan Peat owns 2000 acres of Minden Bog for which it apparently it cannot obtain a permit to mine peat at this time is not an issue in this case, but certainly is likely to be an issue sometime in the future if EPA, the State of Michigan, and Michigan Peat do not come to agreement on the use of these acres.

4.

In its 1994 permit application to the State of Michigan, discussed in detail below, Michigan Peat presented a plan to return mined areas to a wetland state containing large bodies of open water. This is called reclamation. EPA, however, takes the position that mined areas should be restored to the extent practicable to a bog like condition. This is called restoration. The differences between reclamation and restoration involve two forms of expenses: the diminishment of the amount of peat available for mining and additional costs in operations. More particularly:

Reclamation, also called “out-of-kind” wetland reclamation, occurs when one type of wetland, with particular environmental and ecological functions and values, is replaced through human intervention with a different type of wetland; the different type of wetland provides or will provide, in part or in whole, different functions and values than was provided by the original wetland. Restoration, also call “in-kind restoration”, occurs when a wetland which has been damaged or destroyed is rehabilitated or re-created as the same type, or a similar type, of wetland. When restoration occurs, the same ecological functions and values (e.g. habitat for specific bird, mammal and insect species, carbon storage, hydrological functions, etc.) of the original wetland are again provided by the new, restored wetland.

Restoration is a relatively new approach to treatment of mined peat areas. Historically, mined peat areas have been reclaimed, if at all.

C. The Issues

The Corrected Memorandum And Order Granting In Part And Denying In Part Plaintiff’s Motion For Summary Judgment, filed March 21, 2000, describes the issues for trial as follows:

Section 404

1. Whether the 749 acres required a permit and whether Bay-Houston’s activities prior to 1984 were covered by a NWP 26 permit;

2. Whether the ditch and road exemptions under Section 404(j) apply (the reference should have been to Section 404(f)(1)(E) as to haul roads and Section 404(f)(1)(B) as to drainage ditches);

Section 402

1. Whether Bay-Houston’s activities constitute an “addition” to water; and

2. Whether Bay-Houston’s activities fall within the Section 402 exemption for storm water runoff.

Section 809(a)

1. Whether Bay-Houston complied with the part of the compliance order requiring it to ease operations.

Additional issues at trial included reela-mation/restoration appropriate to injunc-tive relief, and the amount of the civil penalty, if any, to be assessed for operating in the absence of the required permits and in violation of the compliance order. The issue of “adjacency,” as will be later described, was also part of the trial. As will be discussed, however, the issues for decision turned out to be significantly different.

II. Overview of Decision on Civil Penalty

A. General

The main issue for decision at this time is the amount, if any, of the civil penalty to be assessed against Michigan Peat for operating without a § 402 permit until July 24, 1998 and for operating without a § 404 permit from 1972 to date. In determining the appropriate penalty, two syllogisms come to mind:

Peat is a commercially useful product (organic soil used for horticultural purposes). Peat is found only in peat bogs. Therefore mining a peat bog is a legitimate commercial activity.

Peat mining is a legitimate commercial activity. To mine peat ditches must be dug to drain off surface waters and haul roads constructed to move equipment and peat. Therefore the digging of drainage ditches and construction of haul roads is a legitimate activity as part of a peat mining activity.

B. Summary

The record does not support a penalty for Michigan Peat’s peat mining activity in the absence of an NPDES permit. As will be described, as soon as Michigan Peat was notified by the permitting authority, Michigan’s Department of Natural Resources (DNR), it filed for, and diligently pursued, a permit. At no time did bog water drainage into the Black River Drain do any substantive harm to the environment. The compliance order requiring Michigan Peat to cease peat mining without an NPDES permit and the filing of this case to enforce the compliance order were neither necessary or appropriate to the circumstances.

The record also does not support a penalty for Michigan Peat’s peat mining activity in the absence of a § 404 permit. Again, as soon as Michigan Peat was notified by the permitting authority that it needed a permit, it filed for and pursued obtaining one. While admittedly Michigan Peat could have been more aggressive in pursuing the permit, at no time did the DNR, or EPA, tell Michigan Peat to cease its peat mining activities. Following the issuance of the compliance order and the filing of this case, Michigan Peat suspended operation and resumed peat mining only after the Court functionally placed an “umbrella” over its peat mining activities.

C. Guiding Lines of Precedents

In coming to its decision, the Court is mindful of three lines of precedential authority which support the finding that no penalty is in order against Michigan Peat for mining peat from the time of enactment of the CWA to July 24, 1998 without a NPDES permit, and without a § 404 permit to the present time.

The first line are the cases which hold that where a regulation fails to give fair warning of the conduct it prohibits a person cannot be penalized for violating the regulation. Here, as will be discussed, EPA and the Corps of Engineers did not make clear that until the early 1990’s peat mining constituted a “discharge” under § 404 and that an NPDES permit was required for Michigan Peat’s mining peat in the Minden Bog.

Exemplary of these cases are: Gates & Fox Company, Inc. v. O.S.H.A., 790 F.2d 154, 155 (D.C.Cir.1986) (“Where the imposition of penal sanction is at issue ... the due process clause prevents that deference from validating the application of a regulation that fails to give fair warning of the conduct it prohibits or requires”); Satellite Broadcasting Co. v. F.C.C., 824 F.2d 1 (D.C.Cir.1987) (same); Rollins Environmental Services v. U.S. E.P.A. 937 F.2d 649, 654 (D.C.Cir.1991) (“While we defer to EPA’s interpretation of the rule, the lack of adequate notice resulting from the regulations inherent uncertainty in meaning is a mitigating factor that had to be taken into account in assessing the civil penalty”). See also Kenneth K. Kilbert and Christian J. Helbling, Interpreting Regulations In Environment Enforcement Cases: Where Agency Deference And Fair Notice Collide, 17 Va. Envtl. L.J. 449 (Summer 1998).

The more relevant and cogent line are the cases which hold that injunctive relief is not appropriate under traditional equitable principles even though the activity is being carried out either in the absence of a permit or while an application is pending. For instance, in Weinberger v. Romero-Barcelo, 456 U.S. 305, 312-13, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982), the Supreme Court said:

In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction. Railroad Comm’n. v. Pullman Co., 312 U.S. 496, 500, 61 S.Ct. 643, 645, 85 L.Ed. 971 (1941). Thus, the Court has noted that “[t]he award of an interlocutory injunction by courts of equity has never been regarded as strictly a matter of right, even though irreparable injury may otherwise result to the plaintiff,” and that “where an injunction is asked which will adversely affect a public interest for whose impairment, even temporarily, an injunction bond cannot compensate, the court may in the public interest withhold relief until a final determination of the rights of the parties, though the postponement may be burdensome to the plaintiff.” Yakus v. United States, supra, 321 U.S. [414,] 440, 64 S.Ct. [660], 675[, 88 L.Ed. 834](footnote omitted). The grant of jurisdiction to ensure compliance with a statute hardly suggests an absolute duty to do so under any and all circumstances, and a federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law. TVA v. Hill, 437 U.S. [153,] 193, 98 S.Ct. [2279,] 2301[, 57 L.Ed.2d 117]; Hecht Co. v. Bowles, 321 U.S. [321], 329, 64 S.Ct. [587], 591[, 88 L.Ed. 754].

See also Amoco Production Company v. Village of Gambell, Alaska, et al, 480 U.S. 531, 545, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) (“We acknowledged in Romero-Barcelo the important role of the “public interest’ in the ‘exercise of equitable discretion.’ ”); Natural Resources Defense Council, Inc. v. Texaco Refining And Marketing Inc., 906 F.2d 934, 938 (3d Cir.1990) (... “in Romero-Barcelo the [Supreme] Court found nothing in the Clean Water Act’s language structure or legislative history evidencing Congress’ intent to deny courts their traditional equitable discretion.”)

Finally, there is the line of cases which recognize that civil penalties may be considered “quasi criminal” in nature. See First American Bank of Virginia v. Dole, 763 F.2d 644, n. 6 (4th Cir.1985); Pollgreen v. Morris, 579 F.Supp. 711, 717-18 (S.D.Fla.1984); United States v. Sanchez, 520 F.Supp. 1038, 1040 (S.D.Fla.1981).

III. The Declaratory Judgment Action

A. Background

In reaching its decision that no civil penalty is warranted, The Court began by considering Michigan Peat’s conduct in filing the declaratory judgment action Michigan Peat brought shortly before, and obviously in anticipation of, EPA’s withdrawal of the State of Michigan’s authority to act on Michigan Peat’s § 404 application to mine peat in the Minden Bog, as will be discussed. See Part X. infra.

As an initial matter, the authority to issue § 404 permits under the CWA was originally vested in the DNR by agreement between EPA and the State of Michigan. Any permit, however, was subject to EPA approval. EPA could withdraw the DEQ permitting authority and vest it in the Secretary of the Army operating through the Corps of Engineers if dissatisfied with a DNR draft permit, as EPA did here.

In 1991, Michigan Peat applied for a § 404 permit with the DNR for the 2,800 acres of land it owned or leased in Minden Bog. The 2,800 acres was in two separate parcels: Minden North and Minden South. Exhibit A displays the two parcels and the dates of acquisition by Michigan Peat. Four yeas later, in 1995, the DNR proffered Michigan Peat a § 404 permit covering only 950 acres of peat land in Minden North. The proffered permit stated 749 acres were “grandfathered” and did not need a permit. Exhibit B displays the sub-parcels in the 1995 proffered permit; it shows the 749 “grandfathered” acres, the 202 permitted acres, and the 1049 acres for which a permit was denied. Shortly thereafter, as will be discussed, the EPA withdrew the State of Michigan’s permitting authority.

B. Filing of the Declaratory Judgment Action

On May 16, 1997, Michigan Peat filed a declaratory judgment action, which it amended on June 25, 1997, seeking to (1) enjoin the EPA from withdrawing the permitting authority of the DNR, (2) validate its right to mine peat from the 749 acres in Minden North “grandfathered” without a § 404 permit, (3) validate its right to continue mining peat on 202 acres in Minden North for which the DNR had proffered a permit. At the same time Michigan Peat contested the conditions of the proffered permit under Michigan’s Administrative Procedures Act, Mich. Comp. Laws Ann. § 24.201, et seq., and also instituted a taking action in the Michigan Court of Claims.

The Court dismissed the action on the grounds no final EPA action was involved and, therefore, the Court lacked jurisdiction. Michigan Peat v. Regional Administrator of Region V of U.S. E.P.A 7 F.Supp.2d 896 (E.D.Mich.1998). Michigan Peat appealed. The Court of Appeals for the Sixth Circuit held that EPA’s approval of the draft permit was final agency action subject to review and reversed the dismissal. Michigan Peat v. U.S. E.P.A., 175 F.3d 422 (6th Cir.1999).

On remand, in the Memorandum And Order Denying Plaintiffs Motion For Partial Summary Judgment As To Count I And Granting In Part And Denying In Part Defendant’s Cross Motion For Summary Judgment As to Count I, filed January 24, 2000, the Court dismissed all of Michigan Peat’s claims except the claim that the 749 acres was grandfathered. This claim, the Court held, presented a triable issue of fact. In a Memorandum filed January 12, 2001, the Court held that the 749 acres were not grandfathered and dismissed the ease. Michigan Peat appealed.

In an unreported per curiam decision, the Sixth Circuit affirmed the dismissal, stating:

We explained the complicated factual, statutory, and procedural history of this case in Michigan Peat v. U.S.E.P.A., 175 F.3d 422 (6th Cir.1999) (Michigan Peat I). On remand from that decision, the district court granted summary judgment to the Environmental Protection Agency, concluding that the Agency’s withdrawal of its objections to the draft permit was not a final and binding determination that 749 acres of wetlands owned by Michigan Peat are exempt from certain provisions of the Clean Water Act. The district court determined that the 749 acres currently are not exempt and that Michigan Peat does not hold a state license to mine peat. We have reviewed the reasoning of the district court and now AFFIRM.

Michigan Peat v. U.S. E.P.A., 2001 WL 1136082, *1 (6th Cir. Sept.18, 2001) (footnote omitted).

The almost summary affirmance of the Court’s dismissal of Michigan Peat’s claim that the 749 acres were grandfathered, that it did not have a valid permit to mine the 202 acres, and that it did not have right to administrative review of the conditions in the proffered permit clearly confirmed the Court’s initial view that the declaratory judgment action had no merit. However, the Sixth’s Circuit reversal of the Court’s initial dismissal did give Michigan Peat a colorable claim that its peat mining was lawful. What is particularly regrettable about all this is Michigan Peat’s failure to appreciate EPA’s role in the 404 permitting process. Simply put, the DNR could not issue a § 404 permit without EPA approval and resort to the State administrative appeal process was a futile effort.

IY. Orders Prior To Trial

The Court’s orders in this case prior to trial are also important to an understanding of the Court’s decision here.

A. Memorandum And Order Denying Defendant’s Motion For Summary Judgment of January 14, 1999

On January 14, 1999, the Court denied Michigan Peat’s motion for summary judgment. In this decision, the Court declined to dismiss Count I of the complaint (discharging pollutants via peat bog drainage without an NPDES permit) even though a NPDES permit had been issued to Michigan Peat on July 24,1998. The Court held that it was necessary to review Michigan Peat’s compliance with the conditions of the permit, limited to specific violations of the permit identified by EPA within 60 days from the date of the order. No violations were, or have been, identified. This order did not moot the need for the Court to consider EPA’s claim that a civil penalty should be assessed for peat mining without an NPDES permit prior to July 24,1998.

As to EPA’s § 404 claim, after describing the background of the matter including peat mining, permitting activity, the regulatory scheme and Michigan Peat’s defenses, the Court held that:

— spreading side-casted bog material from the sides of a ditch onto the bog for future harvest constituted an “addition” under § 404 and therefore subject to a permit.

— the mining of peat land, since it entails deliberately displacing bog material could constitute a regulatable “discharge.”

— bog material temporarily displaced before being removed could constitute a “discharge” and that this might not be negated by ultimate removal of the redeposited material (windrows).

— whether the haul roads were temporary and hence exempt from regulation presented an issue of fact.

— the use of indigenous bog vegetation and clay to treat haul roads and windrow foundations could constitute the discharge of “fill materials” under § 404.

In a concluding footnote the Court expressed the naive view that in light of the fact that Michigan Peat had been issued a § 404 in Cromwell, Minnesota to mine peat “the parties should be able to agree on a form of a section 404 permit which will allow Bay-Houston to continue its peat harvesting operations in Minden North.” U.S v. Bay-Houston Towing, 33 F.Supp.2d 596, 608 n. 12 (E.D.Mich.1999).

B. Order of June 18, 1999 and Memorandum of June 22, 1999

In these orders, the Court denied Michigan Peat’s application for a preliminary injunction against enforcement activity by EPA to enable it to go forward with the 1999 harvesting season. The Memorandum of June 22,1999 states:

Defendant has not established irreparable harm. There is nothing in the record to suggest that plaintiff has, or will, move for preliminary relief to halt the 1999 harvesting season provided defendant continues such harvesting season under the terms and conditions discussed with plaintiff, and which plaintiff has apparently acknowledged would not cause irreparable harm to the harvested areas, i.e., appropriate restoration and reclamation would be possible. Should circumstances change, defendant may renew its motion to establish the presence of the four conditions traditionally present when a preliminary injunction is in place. As of now, the possibility that plaintiff, at some future time, may argue for a penalty for the 1999 harvesting activities on grounds that they were conducted in violation of the Act, notwithstanding the fact that permits have been requested and are being processed and the activities were continued under terms and conditions which did no irreparable harm to the harvested areas, does not warrant preliminary relief. Defendant has conducted seasonal harvesting activities in Minden Township since 1957 and in Sandusky Township since 1967. Because of the complexities of permit requirements, sound administrative practices suggest that historic harvesting activities should not have to be suspended while permit applications are being processed, provided no irreparable harm is being done to harvested areas. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 320, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982).

C. Corrected Memorandum And Order Granting In Part And Denying In Part Plaintiffs Motion For Summary Judgment of March 21, 2000

On March 21, 2000, the Court granted EPA’s motion for summary judgment in part. As to the § 404 issues, the Court:

— found that Michigan Peat violated 404 by placing fill and dredged material in the waters of the United States when it added pollutants by the movement of organic soil, vegetable clay, and other plant material.

— found that the Minden Bog was not an isolated wetland, (the adjacency issue).

— defined the issues which required resolution by trial

V. Orders and Events Following Trial and Prior to Decision On Civil Penalties

A. Summary

1.

Following completion of the proofs on all but the adjacency issue, on March 20, 2001, the Court ruled that EPA was entitled to a judgment on the three counts of the complaint. See Trial Transcript Vol. VI at p. 236. Following telephone conference calls on March 28, 2001 and April 4, 2001, the Court entered an Interim Order on May 11, 2001

— enjoining Michigan Peat from continuing peat mining at Minden North until the Corps of Engineers issued a permit

— requiring implementation of out-of-kind reclamation on certain mined portions of Minden North

— allowing continued peat mining on certain portions of Minden North under defined conditions

— required that a bond or letter of credit be posted to secure the required reclamation obligations

On June 18, 2001, the Court entered a Corrected Order setting forth the basic issues for final decision as follows:

1. The injunctive relief to be afforded EPA as a consequence of Michigan Peat’s peat mining without appropriate permits under the CWA;

2. The penalty to be imposed on Michigan Peat as a consequence of its mining peat without appropriate CWA permits;

3. Michigan Peat’s claim that its peat mining activities were not subject to the CWA because Minden North lands are not adjacent to waters of the United States.

On July 9, 2001, the Court entered an Order following receipt of written comments solicited from the Corps of Engineers modifying the Interim Order with regard to the mining of particular portions of Minden North.

On August 8, 2001, Michigan Peat asked the Court to refrain from issuing any decision regarding the adjacency issue until the Corps of Engineers permitting process was completed.

On September 5, 2001, the Court entered an Order staying proceedings on the adjacency issue.

On October 16, 2001, the Court entered an Order noting that it deferred briefing and decision on the appropriate injunctive relief pending completion of the permitting process with the Corps of Engineers and stating that it intended to proceed to a final decision on the appropriate penalty.

2.

Effectively, the Court found that Michigan Peat’s peat mining activities in Minden North required a § 404 permit, but stayed injunctive relief under defined conditions pending completion of the Corps of Engineers permitting process which includes specific reclamation/restoration requirements, and stayed a decision on the adjacency issue until such time as it became necessary to decide it. If Michigan Peat and the Corps of Engineers agree on a § 404 permit, the adjacency issue will be moot.

B. Corps of Engineers

As will be described, on December 17, 1998, at the suggestion of the Court, Mieh-igan Peat filled a § 404 permit application with the Corps of Engineers. On January 10, 2002, the Corps of Engineers proffered a § 404 permit to Michigan Peat. Resolution of the differences, if any, between the Corps of Engineers and Michigan Peat as to appropriate conditions for the permit are in the future. As with the authority of the DNR to issue a § 402 permit, EPA approval is also required for a Corps of Engineers § 404 permit. However, if EPA does not agree with the Corps of Engineers’ proffered permit, the “disapproval” process is rather complicated. See 40 C.F.R. Pt. 231.

VI. The Regulatory Scheme and the Permitting Process

Also important to an understanding of the Court’s decision is the complicated regulatory schemes under the CWA for a NPDES permit and for a § 404 permit as well as the permitting process. This scheme was discussed by the Court in a prior decision. United States v. Bay-Houston Towing, 33 F.Supp.2d 596 (E.D.Mich.1999). A further description follows.

A. The Clean Water Act

The regulatory scheme under the CWA is generally as follows:

1.

— The stated purpose of the CWA is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters (§ 101(a)).

— The Administrator of the EPA administers the Act generally (§ 101(d)).

— Except as in compliance with the Act, the discharge of any pollutant is unlawful (§ 301(a)).

— If the Administrator finds a violation of the Act, he is to issue an order requiring compliance or may bring a civil action and may ask for an injunction (§ 301(b)).

— Any person who violates the Act is subject to a civil penalty (§ 301(d)).

— The factors to be considered in assessing a civil penalty (§ 301(d)) are

— the seriousness of the violations

— the economic benefits, if any, resulting from the violations

— the history of violations

— the good-faith efforts to comply

— the economic impact of the penalty

— such other matters as justice may require

— There is a five year statute of limitations on civil penalties (28 U.S.C. § 2462)

2.

— A permit is required for the discharge of any pollutant (§ 402(a))

— A state may issue, under defined circumstances, § 402 permits (§ 402(b))

— The Secretary of the Army, through the Corps of Engineers, may issue a permit for the discharge of dredged or fill material (§ 404(a))

— A State may issue § 404 permits under defined conditions (§ 404(a))

— As to a § 404 permit, a state issued-permit is subject to the approval of the Administrator and such authority to issue may be withdrawn in which event authority to issue a permit is vested in the Secretary of the Army. (404(g) and (h)) acting through the Corps of Engineers

— The EPA may veto a Corps of Engineers approved permit (§ 404(c))

— the discharge of dredged or fill material for the purpose of maintenance of drainage ditches does not require a permit (§ 404(j)(l)(c))

— the construction or maintenance of temporary roads for moving mining equipment under defined conditions does not require a permit (§ 404(d)(1)(E))

— The terms “pollutant,” “discharge of a pollutant,” “point source” and “pollutes” are each defined terms (§ 502).

B. Code Of Federal Regulations; Federal Register; Agreements

1.

The § 402 regulatory scheme may be briefly described as follows:

— On August 8, 1973, the EPA published notice of the request of the State of Michigan to administer the NPDES program in the state. 38 Fed.Reg. No. 152.

— In September 1973, EPA and the State of Michigan entered into an agreement providing for State of Michigan administration of the NPDES program in Michigan.

— On July 16, 1974, EPA published notice of its approval of the request of the State of Michigan to administer the NPDES program in 39 Fed.Reg. No. 137, at 26061.

— On March 28, 1997, EPA published notice of its intention to approve modification of the NPDES program in Michigan in transferring authority from DNR to DEQ. 62 Fed.Reg. 14844

— On November 14, 1997, EPA approved the modification. 62 Fed.Reg. 61170.

— 40 C.F.R. Pt. 123 describes the requirement of a state approved NPDES program including:

— § 123.25: requirements for permitting

— § 123.26: requirements for compliance evaluations

— § 123.27: requirements for enforcement authority

— § 123.30: requirements for judicial review for final approval or denial of NPDES permit in state courts

— § 123.41: sharing of information (relating to transmission by the State to EPA of application)

— § 123.44: EPA review of, and objection to, a State permit

The § 402 regulatory scheme gives the State of Michigan comprehensive authority to issue and enforce NPDES permits while giving EPA oversight authority clearly makes the State the primary actor.

2.

The § 404 regulatory scheme may be described briefly as follows:

— 33 C.F.R. Pt. 323: particular policies and practices of the Corps of Engineers in reviewing applications for a § 404 permit.

— 33 C.F.R. Pt. 326: enforcement policies of the Corps of Engineers, including particularly

— § 326.3(e)(IV): which provides that the processing of an application will be suspended during the time an enforcement action is pending.

— 40 C.F.R. Pt. 230, Appendix A: Guidelines For Specification of Disposal Sites for Dredged or Fill Material (§ 404(b)(1) guidelines), which include

— § 230.41: particular provisions relating to wetlands

— § 230.75: actions to minimize adverse effects on actions affecting plant and animal population, including reclamation/restoration.

— 40 C.F.R. Pt. 231: proceedings required by EPA in exercising authority to veto a Corps of Engineers approved permit

— 40 C.F.R. Pt. 233: regulations regarding state programs administering § 404 permitting, including

— § 233.34: permitting decision by the State authorized person, including a written determination outlining the decision and rationale for a decision on a permit application.

— § 233.50-53: EPA oversight and review of state permitting decisions, including the following:

— (J) In the event that the [State] neither satisfies EPA’s objections or requirements for a permit condition nor denies the permit, the Secretary shall process the permit application.

■ — • § 233.70: approval of the State of Michigan to issue 404 permits.

3.

Additionally, because of the joint authority of EPA and the Corps of Engineers regarding § 404 permits, there are a number of agreements between them relating to enforcement and implementation of the § 404(b)(1) guidelines particularly with regard to mitigation. See Memorandum of Agreement Between the United States Environmental Protections Agency and the Department of the Army Concerning the Determination of Mitigation under the Clean Water Act Section 404(b)(1) Guidelines, dated February 6, 1990. See also Bersani v. U.S. E.P.A, 674 F.Supp. 405 (N.D.N.Y.1987), aff'd 850 F.2d 36 (2d Cir.1988) (describing the relationship between EPA and the Corps of Engineers regarding § 404 matters).

C. The Corps of Engineers

1.

Under the Corps of Engineers the permitting process is as follows:

1. Application is made to the district office for Michigan.

2. The office reviews the application to determine whether it is administratively complete and may request additional information.

3. Upon determination that the information is complete a public notice is given, which provides for a comment period, usually 30 days.

4. Following the close of the public comment period, a permit decision is made.

5. If the applicant is dissatisfied with the decision it may file an internal appeal with the Corps.

6. A dissatisfied applicant may obtain review in the district court under the Administrative Procedure Act, 5 U.S.C. § 551.

2.

In denying Michigan Peat’s motion for summary judgment, and in granting EPA summary judgment in part, the Court discussed the regulatory scheme and its application to Michigan Peat’s peat mining activity as regulateable by § 404. These discussions will not be repeated here. What the Court faded to discuss was the particular application of the definition of “discharge of dredged material” to peat mining under the Corps of Engineers regulations, which will now be addressed.

July 18, 1990, the Corps of Engineers issued a Regulatory Guidance Letter, NO. 90-5 (Dx 149) interpreting “discharge of a pollutant” under § 502(12) and 33 C.F.R. § 327.2(f) to include

... land clearing activities using mechanized equipment such as back hoes or bulldozer ... [to] constitute point source discharges [which] are subject to section 404 jurisdiction when they take place in wetlands which are waters of the United States.

33 C.F.R. 323.2(d)(1) reads in part:

(d)(1) Except as provided below in paragraph (d)(2), the term discharge of dredged material means any addition of dredged material into, including any redeposit of dredged material within, the waters of the United States. The term includes, but is not limited to, the following:

(i) the addition of dredged material to a specified discharge site located in waters of the United States;

(ii) the runoff or overflow from a contained land or water disposal area;

and

(iii) any addition, including any redeposit, of dredged material, including excavated material, into waters of the United States which is incidental to any activity, including mechanized landclear-ing, ditching, channelization, or other excavation.

This definition was adopted in an amendment noticed in 58 Fed.Reg. 45,008 on August 25, 1993. In discussing the amendment, the Corps of Engineers stated:

Based upon public comments, the agencies have made certain changes to the language in the regulation defining “discharge of dredged material.” However, the basic thrust of the proposal had not changed. Under the final rule, any addition or redeposition of dredged material associated with any activity, including mechanized landclearing, ditching, channelization and other excavation, that destroys or degrades waters of the United States requires a Section 404 permit.

58 Fed.Reg. 45,009 at 45, 009 (Aug. 25, 1993).

On September 17, 1993, the St. Paul District of the Corps of Engineers published a Public Notice that the § 404 permit regulations defining discharges of dredged material had been amended, referencing 58 Fed.Reg. 45,008. The Notice stated in part:

Mechanized lands clearing, ditching, channelization, and other excavation activities that destroy or degrade waters of the United States, including wetlands, require a Section 404 permit under the Clean Water Act.

A Second Notice to that effect was published by the St. Paul District on May 24, 1994. This Notice stated in part:

The additional, ongoing activities that are now regulated by the Corps under the amended regulations generally include, but are not limited to, mining (peat, gravel, etc.) activities in wetland/water areas.

As part of the rule making process reflected in the Public Notices discussed above, the Corps of Engineers did a telephone survey of its regulatory activity to determine “whether some Corps of Engineers district offices were already regulating certain activities in a manner consistent with the proposed final excavation rule.” Particularly:

2.We asked these Branch Chiefs whether they felt that their current regulatory programs were consistent with the rule of whether they believed that they would have to make changes in their programs during implementation of the rule. We asked them to answer this question with respect to landclear-ing, ditching, channelization, and mining activities conducted in the waters of the United States.

The results of the survey are displayed in Exhibit C.

D. The Permitting Process In Michigan

It is not necessary to detail the permitting process in Michigan with regard to issuance of a NPDES permit. The discussion of Michigan Peat’s application, infra, is sufficient for the decision here that a penalty is not appropriate. However, a discussion of the permitting process involved in Michigan Peat’s § 404 application is important to the decision here that a penalty is not appropriate. That process has been described in prior orders in this case and is generally as follows:

1. The applicant files an application with the Director of the DEQ.

2. Once the application is deemed complete, the DEQ issues a public notice announcing the opportunity to request a public hearing.

a. The minimum time for the public notice is 30 days during which interested parties may express their views concerning the application.

b. Any interested person may request a public hearing, which will be held at the DEQ’s discretion.

3. The DEQ promptly sends the EPA a copy of the application.

4. Within 10 days of its receipt of the application, the EPA forwards the application to the Corps of Engineers, the U.S. Fish and Wildlife and the U.S. Forestry Service.

a. These agencies must advise the EPA of their desire to comment on the application within 15 days of their receipt of the application.

b. If these agencies desire to comment, they must submit their comments to the EPA within 50 days of their receipt of the application.

5. Within 30 days of its receipt of the application, the EPA must indicate to the DEQ in writing whether it will comment on the application.

a. If the EPA declines to comment, the DEQ may issue a permit after the close of the public comment period upon (1) reviewing the application for compliance with designated environmental criteria, and (2) considering all the comments received. The DEQ’s determinations regarding each application must be in writing and the basis must be outlined.

6. Within 90 days of its receipt of the application, the EPA must provide its written comments and make objections to the permit request.

a. If the EPA timely objects, the DEQ is not to issue the proposed permit unless it modifies the permit in accordance with the EPA’s comments.

b. If the DEQ does not satisfy the EPA’s objections or deny the permit, authority to process the permit is transferred to the Corps of Engineers. See 44 C.F.R. Pt. 233.

c. In cases where the EPA objects to the issuance of a permit, within 90 days after the objections by the EPA and after discussions with the Director of the DEQ, the EPA may withdraw its objections and a final permit decision may issue.

d.If the EPA’s objections are not timely, the DEQ may not issue a permit, but must forward the application to the Corps.

VII. The Trial

A. Overview

The trial extended over eight days in March, June, and July 2001. Testimony and exhibits covered the history of Michigan Peat and its predecessor’s peat mining activities in Minden North including land acquisition, initial mining activities such as land clearing, construction of drainage ditches and haul roads, characteristics of a peat bog generally and the Minden Bog in particular, the effect of peat mining on the ecology of a peat bog, restoration and reclamation methods generally, including the costs of such methods and in particular, the lack of such activity by Michigan Peat and its predecessor, the regulatory process including the permitting process for the Cromwell, Minnesota peat mining activity conducted by Michigan Peat, the physical and environmental condition of the 950 acres currently being mined by Michigan Peat, as well as the economic benefit to Michigan Peat in operating without permit.

Also, proofs were taken relevant to whether or not the Minden Bog and particularly the 950 acres are “adjacent” to the waters of the United States, a jurisdictional necessity for regulation under the CWA. See SWANCC, 531 U.S. 159, 121 S.Ct. 675 (2001). As to this issue, the Court, in the Corrected Memorandum And Order Granting In Part And Denying In Part Plaintiff’s Motion For Summary Judgment filed March 21, 1990 at p. 11-13 found “adjacency.” However, because the decision in SWANCC came later, the Court allowed Michigan Peat to make an evidentiary record on the issue.

B. Witnesses

1.

The government called eleven witnesses in its case-in-chief, as well as one witness by affidavit and one witness in rebuttal. The government witnesses were:

— Barbara Madsen, an expert in the ecology and values of a peat bog. Dr. Madsen testified as to the impact of peat mining on the Minden Bog, as well as the link between the Black River Drain which is adjacent to the 950 acres, the Black River and Lake Huron (the adjacency issue).

— Norman C. Famous an expert in peat lands restoration. Professor Famous testified as to the impact of peat mining on the Minden bog and restoration options appropriate to the 950 acres as they presently exist and in the future.

— Marcia Spencer-Famous an expert in peat lands restoration. Dr. Spencer-Famous testified as to impact of peat mining on the Minden Bog and the restoration options appropriate to the 950 acres as they presently exist and in the future with an emphasis on restoration to the original wetlands functions in whole or in part.

— Harold Nilsson, a peat lands hydro-geologist. Dr. Nilsson testified as to the implementation costs of EPA’s recommended restoration options.

— Russ Money, a wetlands ecologist in the United Kingdom. Dr. Money testified as to his review of the restoration proposals suggested by the other experts and peat lands restoration projects in the United Kingdom and Europe.

— David Schulenberg, a senior enforcement officer for EPA. Mr. Schulen-berg testified as to his observations of the field windrows on the 950 acres.

— Allan Batka, a senior enforcement officer for EPA. Mr. Batka testified on his 1997 inspection of the 950 acres and EPA Water Enforcement Division records on the 950 acres.

— Michael Bitondo, a DEQ permit official. Mr. Bitondo testified regarding Michigan Peat’s NPDES permit application for peat bog drainage water from the drainage ditch network on the 950 acres.

— Steven E. Spencer, a DEQ supervisor. Mr. Spencer testified that in 1989 he observed a drainage ditch on the southern boundary of the 950 acres which are not present in a 1978 aerial photograph.

— Charlotte Resseguie, an EPA accountant. Ms. Resseguie testified as to the economic benefit to Michigan Peat on operating without a NPDES permit and a 404 permit.

— Timothy W. Peterson, a Corps of Engineers manager in the St. Paul District. Mr. Peterson testified as to permitting activities in the St. Paul District, including emphasis on restoration of peat lands once mining is completed.

— Bruce E. Holbrook, an engineer in the Detroit District of the Corps of Engineers. Mr. Holbrook testified in rebuttal on the relationship of the Minden Bog to the headwaters of the Black River Drain.

— Julie E. Jordan, a Minnesota Department of Environment employee. Ms. Jordan testified by affidavit as to peat mining permit activity in Minnesota.

Much of the testimony was cumulative and a good deal of it could have been the subject of a fact stipulation. Additionally, some of the testimony, while historically interesting, was of arguable relevance to the real issues in the case. Of significance, however, is the fact that no representative from EPA or DEQ testified as to any environmental harm from the discharge of bog water through the drainage ditches into the Black River, or any substantive harm to the environment from Michigan Peat’s peat mining as such (in contrast to Michigan Peat’s failure to do anything about the mined portions of the 950 acres). Typically, in an environmental enforcement action, regulatory officials testify as to the substantive harm which causes the agency to seek an injunction and why penalties are appropriate for causing such harm. This case is anything but typical.

2.

Michigan Peat called nine witnesses. They were:

— David Newman, chief executive officer of Michigan Peat. Mr. Newman joined Michigan Peat in 1988. He testified as to Michigan Peat’s mining activities, the nature of peat mining, the history of peat mining on the 950 acres and Michigan Peat’s permit efforts in Michigan and in Minnesota.

— Harry Fraser, director of operations of Michigan Peat. Mr. Fraser joined Michigan Peat in 1985. He testified as to the layout of the 950 acres, the start of the 404 permitting process, maintenance and use of haul roads, drainage ditches and windrows and Michigan Peat’s obligations under the NPDES permit. Mr. Fraser had no good explanation of the rather primitive efforts to date of Michigan Peat in restoring mined parts of the 950 acres.

— Gary Danemiller, a senior engineer with Soils And Materials Engineers. This company was retained by Michigan Peat in 1996 to assist in processing a NPDES permit. Mr. Dannemiller described the drainage patterns on the 950 acres and the efforts relating to obtaining the NPDES permit.

— Thomas J. Malterer, an expert in peat lands. Mr. Malterer testified as to appropriate reclamation techniques for the 950 acres. He began his investigative work in 1998. He also testified on the “adjacency” issue.

— Francois Quinty,an expert on peat lands. Mr. Quinty testified as to appropriate reclamation techniques for mined peat land developed in Canada. He began his investigation in 2000.

— Robert Furhman, an economic analyst. Mr. Furhman testified in response to Ms. Resseguie’s analysis of the economic benefit to Michigan Peat in peat mining without a permit.

— John Lamb, an employee of McDowell & Associates, a company which does soil and ground water investigation. In 1993 Mr. Lamb conducted a hydro-geological study of Minden North relative to the ground water level impact resulting from the drainage ditches. He also expressed opinions on the Famous’ reports.

— Brooks Williamson, owner of Brooks Williamson & Associates, Inc., an environment consulting company specializing in wetlands and lakes and streams projects. The company was retained by Michigan peat in 1993 to assist in the preparation of the application for the 404 permit and has been involved with Michigan Peat since that time in doing site assessments' and reclamation technique reports.

— Bernard Goode, a former engineer for regulatory matters with the Corps of Engineers. Mr. Goode testified that the 950 acres was not in the headwaters of the Black River and neither a tributary of or adjacent to navigable waters.

The testimony of the Michigan Peat’s witnesses described in detail its efforts to obtain the NPDES permit and the § 404 permit, took issue with what they considered EPA’s expansive and innovative views on appropriate reclamation/restoration techniques for mined peat lands and challenged the view that Minden Bog was “adjacent” to the waters of the United States. While the testimony offered by Michigan Peat was not cumulative, again much of it could have been the subject of a fact stipulation.

C. The Exhibits

1.

The record was inundated with exhibits. EPA put over 280 exhibits into evidence; Michigan Peat put 169 exhibits into evidence. The exhibits included EPA and Corps of Engineers regulations, brochures and the like relating to permit applications, court filings, depositions, resumes and narrative statements of the witnesses, expert witness reports, affidavits, answers to interrogatories, documents relating to land acquisition, the complete permitting history of Michigan Peat’s initial 1991 § 404 application and the 1994 application, correspondence, memorabilia, E-Mail messages, permits, historical maps, financial data, photographs, videos, drawings, sketches, excerpts from learned treatises and a host of miscellaneous papers, etc.

Additionally, each party furnished the Court a glossary of terms and the EPA lodged with the Court compilations of cases and proceedings in which penalties were assessed for NPDES violations and a compilation of judicial penalties awarded for violations involving discharges without a § 404 permit. The compilations, while requested by the Court, in retrospect were not helpful. None of the facts in the cited cases remotely resemble the facts of this case. The NPDES violations related to discharges of pollutants which were harmful, i.e. exceeded appropriate limits unlike the circumstances here and the § 404 violations were for harmful discharges without a permit as distinguished from Michigan Peat’s continuation of a commercially acceptable operation while a permit application was pending but faffing to actively take steps to do anything about mined peat lands.

VIII. Michigan Peat’s Operations In The Minden Bog

A. Land Acquisition

The land owned or leased by Michigan Peat in Minden Bog is displayed on Exhibit A. Michigan Peat’s predecessor acquired most of the land in a trade with the State of Michigan in 1958, 1,280 acres, for the stated purpose of mining peat. The predecessor purchased an additional 240 acres in April 1958. Michigan Peat leased these acres from its predecessor in 1964. Michigan Peat purchased an additional 480 acres in 1969. These 2,000 acres constitute what is called Minden North.

Between 1975 and 1978, Michigan Peat purchased 814 additional acres south of Minden North. These 814 acres constitute what is called Minden South. As can be seen from Exhibit A, Minden North and Minden South are not contiguous.

B. Peat Mining Activity

1.

Michigan Peat’s predecessor began mining peat in Minden North in the late 1950’s with the clearing of land, digging of ditches, and construction of roads. While the precise extension of peat mining activities over the 951 acres on which peat mining is now taking place is not clear, it appears that

— the majority of the drainage ditches were dug prior to 1972 with additional ditches dug in 1975 (western site) and 1976 (along the west side). All ditches were open, in any event, by 1986

— road construction prior to 1972 was confined to the northeasterly portion, with additional roads constructed in the center portion between 1975-1977 and small additional segments in 197-1977, 1979-1980, 1983-1985 and 1986-1987. All of the roads were constructed by 1987. A layout of the progress of road construction is displayed on Exhibit E.

— vegetation was cleared prior to 1972 in the northeasterly portion, in 1975 in the middle running north and south, in 1977 west of the portion cleared in 1975, along the westerly side in 1978-1979, a small portion in 1984 and a strip along the western side in 1985. All of the vegetation was cleared, in any event, by 1985.

In short, the haul roads were installed, for the most part, prior to 1977 with some construction between 1977 and 1985 and a short extension in 1986-1987. All of the ditches were dug by 1976, with some work done on the western ditch and southern ditch in the late 1970’s or early 1980’s, although EPA argues one ditch was dug in 1986. All of the land was cleared prior to 1982, except for the 95 acres in 1989. In sum, the ditches were dug, the haul roads constructed, and the land cleared in Min-den North by 1989 and most of the cells were open by 1985.

2.

Generally, peat mining involves the removal of peat moss by first clearing surface vegetation in a bog area and allowing the exposed peat to dry in the sun. Once dried, the peat moss is harvested and bagged, to be sold for horticultural purposes. Michigan Peat harvests three types of commercial peat. Sphagnum peat constitutes the upper most layer of the peat deposit. The second two layers are known commercially as horticultural peat and reed/sedge peat. See Exhibit F (depicting a typical cross section of Minden Bog).

After the surface vegetation is cleared from an area being harvested, sphagnum peat is harvested by discing the area with a farming disc, and then vacuuming the loosened sphagnum peat with a vacuum harvester and depositing it at the side of a field into a temporary harvest windrow. Horticultural peat and reed-sedge peat are harvested by using a bulldozer to push the next layers of peat material across the field into temporary harvest windrows.

The temporary harvest windrows measure as much as 30 feet wide, 12-14 feet tall, and several hundred feet long. Their foundation is comprised of woody surface vegetation cleared from intended harvesting areas of the bog using a brush hog mower, a machine comparable to a “very large lawnmower.” The peat material is stored in the temporary harvest windrows before being transported by truck to the packaging plant along adjacent haul roads.

3.

Michigan Peat constructed haul roads using materials found in the bog. The woody surface vegetation from the bog was used as a foundation for the harvest windrows as well as a foundation for the haul roads. The foundation for the haul roads was topped with sand, gravel, and clay, and then smoothed. The haul roads measure approximately 36 to 42 inches in height, ie. 18 inches of vegetation topped by 18-24 inches of clay and sand. The haul roads are maintained on an as needed basis by using materials from the bog to fill in holds that develop in the road surface and to smooth washboard areas. According to Michigan Peat, the haul roads are temporary, though none have been removed to date and there appear to be no plans for further removal.

Michigan Peat also excavated a network of in-field drainage ditches to lower the water table in an area of the bog to be harvested to enable the peat to dry in the sun. The ditches reach depths of up to 14 feet. In excavating the ditches, Bay-Houston used backhoes, excavators and Dondi ditchin