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LAD Foundation Sues Shannon County CommissionApril 6, 2009 CERTIFIED MAIL, RETURN RECEIPT REQUESTED The Hon. Tony Orchard, Presiding Commissioner Re: Notice of Intent to Sue Pursuant to Section 505 Dear Mr. Orchard: This notice of intent to sue is served on behalf of the L-A-D Foundation. The L-A-D Foundation is a Missouri private operating foundation dedicated to sustainable forest management, protection of exemplary natural and cultural areas in Missouri, including areas within the Missouri Ozark region, and providing support and advocacy for projects and policies which have a positive influence in the Missouri Ozark region. The L-A-D Foundation owns and leases to the Parks Division of the Missouri Department of Natural Resources an area of land known as the Roger Pryor Pioneer Backcountry (hereinafter “Backcountry”). The mailing address of the L-A-D Foundation is 705 Olive Street, Suite 724, St. Louis, MO 63101, and its telephone number is (314) 621-0230. The actions of Shannon County and the resulting injury to Big Creek and the Current River, described below, negatively impact the Foundation’s mission to protect the natural resources of the Missouri Ozark region. Within the past 120 days Shannon County employees and/or contractors (hereinafter “Shannon County”) entered Backcountry lands by leaving Shannon County Road 265 and crossing over Backcountry lands with track hoes and other equipment into Big Creek, a major tributary of the Current River below Round Spring. The points of entry all are located within Shannon County §6, T30N R3W along Big Creek (north of Mauser Mill). Shannon County dug out the Creek at several locations within a distance of approximately one mile, upstream from a concrete-slab culvert bridge that carries Shannon County Road 250 across Big Creek. The actions of Shannon County include the following: In one area Shannon County used a track hoe to mine large quantities of gravel from the Creek bed. This action created a new, deep, and straightened artificial stream channel; In several locations Shannon County removed large rock from Big Creek and from surrounding L-A-D lands to fill-in the creekbed, build a small dam in the old channel, and re-contour the stream; The Hon. Tony Orchard, Presiding Commissioner At the northernmost location Shannon County pushed and piled creekbed gravel into what functions as a levee approximately 10-12 feet above the surface of the water and along the roadside, in the process moving equipment across the creek bottom and gravel to both sides of the Big Creek. This extended for approximately 385 yards along the stream. A wing dike was discovered within the ordinary high water mark; At a point about 1200 feet above the re-alignment (straightening) Shannon County removed an estimated 6000 cubic yards of gravel from the streambed. In each instance Shannon County mined gravel, clay, soil, and rock from L-A-D lands and deposited these materials into Big Creek below its ordinary high water mark. The approximate beginning and ending points of these actions are shown on the attached Exhibit 1. On information and belief, these actions took place within the first two weeks of January, 2009. All of this was done without contacting either the L-A-D Foundation or the Pioneer Forest LLC office in Salem, and without any state or federal permit. The effects of Shannon County’s actions include the carrying of additional sediment down Big Creek. These damages are ongoing. The considerable volume of now unconsolidated and unsecured materials remains within the creek. Further, when the Creek rises with spring rains, faster flowing water will scour out the dikes, causing red clay sediment from the dikes to enter the Creek and be carried downstream to the Current River. Further, in crossing Backcountry lands to get to Big Creek at numerous points along its course, Shannon County destroyed or damaged numerous trees and created potential erosion problems at numerous locations inboard from the stream. Damage to L-A-D property and to Big Creek is assessed as severe. Photos of some of the damage are attached as Exhibits 2A through 2P. On January 23, 2009, the Missouri Department of Natural Resources, U.S. Army Corps of Engineers, and representatives of Shannon County conducted an investigation of the County’s actions along and near Shannon County Road 265 on Big Creek. Section 301 of the Clean Water Act, 33 U.S.C. §1311, provides that the unauthorized discharge of any pollutant into waters of the United States by any person is unlawful. In depositing the gravel, clay, soil, and rock into Big Creek, Shannon County discharged pollutants to the Creek, in violation of the Clean Water Act (see 33 U.S.C. §§ 1344, 1362 (6), and 1362 (7) and 40 C.F.R. § 122.2), and in violation of Missouri Water Quality Standards General Criteria (see 10 CSR 20-7.031 (C) and (G)). Pursuant to the Clean Water Act, the person giving this notice may file a citizen suit against Shannon County after 60 days from the providing of this notice. The L-A-D Foundation intends to file a citizen suit against Shannon County for violations of the Clean Water Act. The Foundation expects to seek relief designed to evaluate and remedy the harm to Big Creek and the Current River, as well as injunctive relief, legal expenses, civil penalties, and its attorneys’ fees and costs for the violations of the Clean Water Act. Sincerely, Bruce A. Morrison Cc: Mark N. Templeton, Director Doug Eiken Lisa Jackson, Administrator William Rice, Acting Regional Administrator Louis Clarke
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