An environmental nonprofit has taken aim at TDOT, filing a lawsuit last week against the department and its commissioner Gerald Nicely over the alleged infraction of wetland protection provisions.
The plaintiff, Washington D.C.-based Public Employees for Environmental Responsibility, filed the suit last Friday. Its filings stem from work that went on more than a decade ago with the construction and widening of State Route 12 between Nashville and Ashland City.
According to the court filing, when permits for the work were taken out in July of 1993, TDOT was authorized to place fill material in 0.76 acres of wetlands, mostly located in land adjacent to Big Marrowbone Creek, a tributary of the Cumberland River in Cheatham County.
Under the Clean Water Act, the agency in turn was required to do wetland mitigation, or “create, preserve or restore” 1.6 acres of wetlands at a single site as “compensation for the wetlands that would be impacted by the road construction at certain sites in this area,” the suit says.
However, according to the lawsuit, a series of amendments to the original construction plan changed the size of the impacted wetlands from 0.76 acres to 4.5 acres, meaning the agency was now required to “create, preserve or restore” wetlands “over 10 acres at four locations.”
The suit alleges that as of 2009, TDOT has only performed wetlands mitigation at two of the four sites. It wants a judge to compel TDOT to finish the work and, citing the Clean Water Act, fine it $32,500 per violation per day. That could add up to substantial money: A year's worth of fines along those lines amount to almost $12 million.
“This is not rare,” Barry Sulkin, the director of the local PEER chapter, told NashvillePost.com. “Across the country, wetland mitigation is either unsuccessful or doesn't get completed.”
According to Sulkin, the lawsuit began with a 1999 Tennessee Tech University report on wetland mitigation which examined 50 sites across the state.
“We started poring through the report and looking at the rate of success and failure of mitigation and then started visiting those sites to see if the corrective action had been taken,” Sulkin said. The State Route 12 site was listed in the report.
The group is looking at other wetland sites TDOT has failed to mitigate and is actively preparing further lawsuits, Sulkin added.
“In that report, there were more TDOT sites than any other entity because they are the largest permitted entity that gets these types of permits,” Sulkin said.
Reached for comment, representatives of TDOT said they could not yet comment on the case as the organization has yet to be formerly served. NashvillePost.com will update as more information becomes available.