United States of America v. LaPant et al

Filing 106

CONSENT DECREE between U.S. and Goose Pond signed by District Judge Kimberly J. Mueller on 06/10/19. (Benson, A.)

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JEFFREY H. WOOD
Acting Assistant Attorney General
JONATHAN D. BRIGHTBILL
Deputy Assistant Attorney General
ANDREW J. DOYLE
JOHN THOMAS H. DO
ANDREW S. COGHLAN
United States Department of Justice
Environmental and Natural Resources Division
P.O. Box 7611
Washington, DC 20044
Telephone: [phone] (Doyle)

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McGREGOR W. SCOTT
United States Attorney
GREGORY T. BRODERICK
Assistant United States Attorney
501 I Street, Suite 10-100
Sacramento, CA 95814
Telephone: [phone]

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Attorneys for the United States

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DOWNEY BRAND LLP
ROBERT P. SORAN
ASHLEY M. BOULTON
621 Capitol Mall, 18th Floor
Sacramento, CA 95814-4731
Telephone: [phone]

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Attorneys for Goose Pond Defendants

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,
Plaintiff,
v.
ROGER J. LAPANT, JR., J&J FARMS,
GOOSE POND AG, INC. and
FARMLAND MANAGEMENT
SERVICES,

Case No. 2:16-cv-01498-KJM-DB
CONSENT DECREE BETWEEN THE
UNITED STATES AND GOOSE POND
DEFENDANTS

Defendants.

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Consent Decree: USA / Goose Pond Defendants

Case No. 2:16-cv-01498-KJM-DB

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WHEREAS Plaintiff United States of America has filed a Complaint in this action

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alleging that Defendants Roger J. LaPant, Jr., J&J Farms, Goose Pond Ag, Inc., and Farmland

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Management Services violated and remain in violation of the Clean Water Act (“CWA”) section

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301(a), 33 U.S.C. § 1311(a);

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WHEREAS the Complaint alleges, in its first count, that Roger J. LaPant, Jr.’s and J&J

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Farms’ CWA violations resulted from operations occurring between approximately July, 2011,

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and March, 2012, on real property (or “Site”) near Ohm Road, Paskenta Road, and the main stem

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of Coyote Creek in Tehama County, California;

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WHEREAS the Complaint alleges, in its second count, that Goose Pond Ag, Inc.’s and

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Farmland Management Services’ (“Goose Pond Defendants”) CWA violations resulted from

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operations beginning approximately November, 2012, on the Site;

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WHEREAS the Complaint alleges, inter alia, that Goose Pond Defendants’ operations

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resulted in the unauthorized discharge of dredged or fill material into “waters of the United

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States” that are hydrologically and ecologically connected to Coyote Creek and the Sacramento

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River;

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WHEREAS the Complaint requests that the Court award injunctive relief and civil
penalties;
WHEREAS unless otherwise expressly admitted in Goose Pond Defendants’ Answer to

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the United States’ Complaint, Goose Pond Defendants do not admit any facts as alleged in the

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Complaint, and Goose Pond Defendants deny any and all liability to the United States arising out

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of the transactions or occurrences alleged in the Complaint, but Goose Pond Defendants agree to

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be bound by this Consent Decree to avoid the time, expense, and uncertainty of further litigation;

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WHEREAS the Parties recognize that this Consent Decree has been negotiated by the

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Parties in good faith and will avoid further litigation among the Parties, and the Court by

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entering this Consent Decree finds that it is fair, reasonable, and in the public interest; and

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THEREFORE, before the taking of any trial testimony, and without the adjudication or
admission of any issue of fact or law except as provided in Section I of this Consent Decree, and

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Consent Decree: USA / Goose Pond Defendants

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with the consent of the Parties by their authorized representatives, it is hereby ORDERED,

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ADJUDGED and DECREED as follows:

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I. JURISDICTION, VENUE, AND SUFFICIENCY OF COMPLAINT
1.

This Court has jurisdiction over the subject matter of the Complaint pursuant to at

least 28 U.S.C. §§ 1331 and 1345.
2.

Venue is proper in the Eastern District of California pursuant to CWA section

309(b), 33 U.S.C. § 1319(b), and 28 U.S.C. §§ 1391(b) and (c).
3.

For purposes of this Consent Decree, including any action to enforce this Consent

Decree, Goose Pond Defendants consent to personal jurisdiction and venue.
4.

For purposes of this Consent Decree, including any action to enforce this Consent

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Decree, the Parties agree (without Goose Pond Defendants admitting any liability), and the Court

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finds, that the Complaint states claims upon which relief can be granted pursuant to CWA

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sections 301(a) and 309(d), 33 U.S.C. §§ 1311(a) and 1319(d).

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II. APPLICABILITY
5.

This Consent Decree applies to and is binding upon the United States, and it also

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applies to and is binding upon Goose Pond Defendants and any successors, assigns, or other

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persons otherwise bound by law whether or not such person has notice of this Consent Decree.

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6.

No transfer of ownership or control of the Site, of any portion of the Site, or of

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any less-than-fee-simple interest in the Site or a portion thereof (such as an easement or lease)

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shall relieve Goose Pond Defendants of any of their obligations in this Consent Decree. As a

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condition of any such transfer, Goose Pond Defendants shall reserve all rights necessary for

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Goose Pond Defendants to comply with this Consent Decree. At the time of such transfer,

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Goose Pond Defendants shall provide a copy of this Consent Decree to the transferee, shall

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obtain the transferee’s acknowledgement thereof, and shall provide written notice of the transfer

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and a copy of such acknowledgement to the United States at the addresses specified in Section

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XI of this Consent Decree. Any attempted or actual transfer of any interest in the Site without

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complying with this Paragraph constitutes a violation of this Consent Decree. Currently existing

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third-party easements on the Site shall not be considered a “transfer of ownership or control of

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the Site, or any portion of the Site, or of any less-than-fee-simple interest in the Site or a portion

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thereof” within the meaning of this Paragraph, nor shall a third-party’s exercise of its rights

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under such currently existing easement result in a breach or default of this Consent Decree by

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Goose Pond Defendants or their successors and assigns (provided that Goose Pond Defendants

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or their successors and assigns lack relevant control over the third party’s exercise of such rights

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according to the terms of such currently existing easement); within sixty (60) Days of the

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Effective Date of this Consent Decree, Goose Pond Defendants shall provide copies of such

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currently existing third-party easements to the United States at the addresses specified in Section

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XI of this Consent Decree.

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7.

Goose Pond Defendants shall provide a copy of this Consent Decree to all officers

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and agents whose duties might reasonably include compliance with any provision of this Consent

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Decree, including any contractor or consultant retained to perform remedial work or monitoring

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and maintenance required under this Consent Decree. To the extent that Goose Pond Defendants

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retain any contractor or consultant to perform remedial work, monitoring and maintenance, or

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any other obligation required under this Consent Decree, Goose Pond Defendants shall condition

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any such contract upon performance that conforms to the terms of this Consent Decree.

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8.

In any action to enforce this Consent Decree, Goose Pond Defendants shall not

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raise as a defense the failure by any of their officers, directors, employees, agents, contractors, or

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consultants to take any actions necessary to comply with this Consent Decree.

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III. DEFINITIONS
9.

Terms used in this Consent Decree that are defined in the CWA or in regulations

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promulgated pursuant to the CWA shall, unless otherwise provided in this Consent Decree, have

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the meanings assigned to them in the CWA or such regulations that were in effect immediately

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prior to the amendments provided in the Clean Water Rule: Definition of “Waters of the United

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States,” 80 Fed. Reg. 37,054 (June 29, 2015).

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10.

Whenever the terms set forth below are used in this Consent Decree, the

following definitions shall apply:

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“Balance of the Site” shall mean all areas of the Site except for (i.e., exclusive of) the
Conservation Reserve.

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“Complaint” shall mean the complaint filed by the United States in this action on June
30, 2016.

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“Conservation Reserve” shall mean an area of approximately 616 acres within the Site

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that is shown and outlined in green on Appendix 2 attached hereto; the Conservation Reserve is

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generally located on the eastern part of the Site as well as the entire length of Coyote Creek’s

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main stem that traverses the Site’s southern boundary, including a buffer of one hundred fifty

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(150) feet north of the northern ordinary high water mark of Coyote Creek’s main stem.

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“Corps” shall mean the United States Army Corps of Engineers and any of its successor

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departments or agencies. Unless the context shows otherwise, all references to the United States

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herein shall include the Corps.
“Day,” whether or not capitalized, shall mean a calendar day unless expressly stated to be

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a business day. In computing any period of time under this Consent Decree, where the last day

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would fall on a Saturday, Sunday, or federal holiday, the period shall run until the close of

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business of the next business day.
“Effective Date” shall mean the date on which this Consent Decree is entered by the

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Court.
“Farming activities” shall mean activities that are appropriate to prepare, maintain, and
operate areas for the production of walnuts or other irrigated food crops.
“Goose Pond Defendants” shall mean Defendants Goose Pond Ag, Inc. and Farmland
Management Services.

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“Parties” shall mean the United States and Goose Pond Defendants.

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“Remedial Plan” shall mean the remedial work, monitoring, adaptive management, and

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maintenance plan prepared and implemented by Goose Pond Defendants, with approval of the

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Corps, in specified areas of the Site as set forth in Paragraphs 26 and 27 of this Consent Decree

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and appended to this Consent Decree as Appendix 3.

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“Site” shall mean the real property, currently owned or controlled by Goose Pond

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Defendants, comprising approximately one thousand five hundred five (1,505) acres and located

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in rural Tehama County, California, just south of the city of Red Bluff and due west of Interstate

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Five (5). The Site is generally bounded on the north by Ohm Road (which may also be known as

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Rawson Avenue), on the south by the main stem of Coyote Creek, on the west by Paskenta Road,

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and on the east by Rawson Road. The Site is currently associated with Assessor Parcel Numbers

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037-020-01, -03, -04, -023, -024, -025, and -026. The Site is labeled as such (and “Tehama

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North Site” in the legend) on Appendix 1 attached hereto.

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All references to “depressions” shall mean “wetland vernal pools,” “wetland
depressions,” or “pools” and vice-versa; these terms are interchangeable herein.
All references to “swales” shall mean “wetland swales” and vice-versa; these terms are
interchangeable herein.

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All references to “wetlands” shall mean “swales” and “depressions.”

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All references to “drainages” shall mean “drainage feature,” “streams,” or “stream” and

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vice-versa; these terms are interchangeable herein.
All references to “aquatic features” shall mean “depressions,” “swales,” and “drainages.”

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IV. SCOPE, EFFECT, AND RESERVATION OF RIGHTS
11.

This Consent Decree resolves and shall constitute a complete and final settlement

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of the civil claims of the United States alleged in the second count of the Complaint, subject to

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Goose Pond Defendants’ compliance with this Consent Decree. The United States covenants not

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to sue or take administrative action against Goose Pond Defendants and their respective officers,

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directors, agents, and affiliates for the civil claims of the United States alleged in the second

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count of the Complaint, subject to Goose Pond Defendants’ compliance with this Consent

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Decree.

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12.

It is the express purpose of the Parties in entering this Consent Decree to further

the objectives set forth in CWA section 101, 33 U.S.C. § 1251.
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Goose Pond Defendants’ obligations under this Consent Decree are joint and

several.

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14.

The Parties acknowledge that, as of the Effective Date of this Consent Decree,

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Nationwide Permit 32, 82 Fed. Reg. 1,992 (Jan. 6, 2017), provides CWA section 404

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authorization, subject to the conditions provided in Nationwide Permit 32 and this Consent

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Decree, for any discharge of dredged or fill material that is necessary for Goose Pond Defendants

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to fulfill the remedial requirements set forth in Paragraphs 26 and 27 of this Consent Decree.

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15.

This Consent Decree is not and shall not be interpreted to be a permit, or

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modification of any permit, under any federal, state, or local laws or regulations. Goose Pond

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Defendants are responsible for compliance with all applicable federal, state, and local laws,

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regulations, and permits; and Goose Pond Defendants’ compliance with this Consent Decree

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shall be no defense to any action commenced pursuant to any such laws, regulations, or permits,

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except as set forth in this Consent Decree. The United States does not warrant that Goose Pond

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Defendants’ compliance with any aspect of this Consent Decree will result in compliance with

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any provision of federal, state, or local laws, regulations, or permits, except as set forth in

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Paragraph 14 of this Consent Decree. Further, in any future CWA permit application, Goose

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Pond Defendants may not rely upon (a) the on-Site remediation work or preservation required

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under this Consent Decree, as part of any avoidance and minimization measures demonstration;

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or (b) the off-Site compensatory mitigation required under this Consent Decree, as part of any

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compensatory mitigation proposal.

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16.

Except as provided in Paragraph 14, nothing in this Consent Decree shall limit the

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ability of the Corps to issue, modify, suspend, revoke, or deny any individual permit or any

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nationwide or regional general permit, nor shall this Consent Decree limit the United States

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Environmental Protection Agency’s ability to exercise its authority pursuant to CWA section

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404(c), 33 U.S.C. § 1344(c).

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17.

This Consent Decree in no way affects the rights of the United States or Goose

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Pond Defendants as against Defendant Roger J. LaPant, Jr., Defendant J&J Farms, or any other

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person not a party to this Consent Decree, except as expressly stated in the second sentence of

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Paragraph 11 of this Consent Decree.

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18.

The United States reserves all legal and equitable remedies available to enforce

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this Consent Decree and applicable law, except as expressly stated in Paragraph 11 of this

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Consent Decree. This Consent Decree shall not be construed to limit the rights of the United

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States to obtain remedies under the CWA or its implementing regulations, or under other federal

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laws, regulations, or permit conditions, except as expressly specified in Paragraph 11 of this

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Consent Decree.

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(Paragraphs 19 through 21 are intentionally omitted.)

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V. REMEDIAL PROVISIONS

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A.
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CIVIL PENALTY

Within thirty (30) Days of the Effective Date of this Consent Decree, Goose Pond

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Defendants shall pay a civil penalty to the United States in the amount of one million seven

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hundred fifty thousand dollars ($1,750,000).

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23.

Payment to the United States shall be made in accordance with written

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instructions to be provided to Goose Pond Defendants by the United States Department of Justice

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following entry of this Consent Decree. Promptly upon payment, Goose Pond Defendants shall

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provide written notice thereof to the United States at the addresses specified in Section XI of this

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Consent Decree.

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24.

Decree pursuant to this Section or Section X in calculating any federal income tax owed.

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Goose Pond Defendants shall not deduct any penalties paid under this Consent

B.
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INJUNCTIVE RELIEF

Permanent Preservation of the Conservation Reserve. Except as necessary to

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fulfill the remedial requirements of Paragraphs 26 and 27 of this Consent Decree, Goose Pond

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Defendants and their agents, successors, and assigns and all persons having actual or

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constructive notice of this Consent Decree are permanently enjoined from disturbing the

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Conservation Reserve by any dredging, filling, land clearing, tillage, farming activities,

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construction work, earthmoving activities, or any pollutant discharge. (The foregoing list is but

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examples of prohibited disturbance, and these examples may be overlapping in their meaning.)

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Nevertheless, Goose Pond Defendants and their agents, successors, and assigns may use the

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Conservation Reserve for moderate non-irrigated cattle grazing and the following associated

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activities: above-ground, non-toxic measures to control for weeds, pests, and invasive species;

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cattle corrals, for loading and unloading cattle outside of aquatic areas; use of gates, fencing, and

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earthen farm roads that currently exist in the Conservation Reserve; use of existing fuel tank; and

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construction of a firebreak, if required by Tehama County, outside of aquatic areas; provided,

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however, that as to Work Areas 5, 6, and 9 within the Conservation Reserve, Goose Pond

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Defendants must await the reestablishment of vegetation cover in the Conservation Reserve in

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accordance with the Remedial Plan before conducting such grazing and associated activities in

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those areas. Goose Pond Defendants and their agents, successors, and assigns may also use the

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Conservation Reserve for additional activities associated with and necessary to conduct moderate

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non-irrigated cattle grazing (such as installation and/or maintenance of T-posts or similar

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fencing, installation of above-ground water sources, and placement of additional earthen access

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roads for ingress and egress to/from cattle corrals), provided that Goose Pond Defendants first

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submit a plan with requisite information about the intended additional activities, including their

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location and impact if any on aquatic areas, to the Corps for its review and approval, which

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approval shall not be unreasonably withheld. The obligations and rights of this Paragraph shall

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run with the land and bind Goose Pond Defendants’ successors and assigns and any person with

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actual or constructive notice of it, and shall be enforceable by the United States (by any

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appropriate legal proceeding, including but not limited to enforcement of this Consent Decree).

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The Balance of the Site is not affected by this Paragraph.

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26.

Remedial Work in the Conservation Reserve and Balance of the Site.
a.

Goose Pond Defendants have submitted to the Corps, and the Corps has

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approved, the Remedial Plan that is appended to this Consent Decree as Appendix 3. Within

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sixty (60) Days of the Effective Date of this Consent Decree, Goose Pond Defendants shall

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pursue approval by the Corps of a 60-percent drawing set (also referred to as the “Grading Plans”

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in the Remedial Plan), which approval shall not be unreasonably withheld. If the Corps finds

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Goose Pond Defendants’ 60-percent drawing set to be incomplete or inadequate, the Corps shall

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provide Goose Pond Defendants written notice of a determination to decline to accept it, and the

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Corps may supplement that notice with written recommendations for modifications or additions

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to the 60-percent drawing set sufficient to make it approvable by the Corps.

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b.

(Paragraph 26.b. is intentionally omitted.)

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c.

Goose Pond Defendants shall implement the Remedial Plan and 60-

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percent drawing set as approved by the Corps and in accordance with the deadlines set forth

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therein.

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d.

Within thirty (30) Days of what Goose Pond Defendants believe is the

completion of all work set forth in the Remedial Plan (with the exception of monitoring, adaptive

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management, and maintenance), Goose Pond Defendants shall submit a written request for

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approval of completion of such work to the Corps, which approval shall not be unreasonably

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withheld. If the Corps disapproves, Goose Pond Defendants shall promptly correct the

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deficiencies as identified by the Corps in accordance with a schedule approved by the Corps.

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Within thirty (30) Days of obtaining the Corps’ approval that all remedial work set forth in the

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Remedial Plan has been completed, Goose Pond Defendants shall provide written notice to the

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United States at the addresses specified in Section XI of this Consent Decree.

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27.

Monitoring, Adaptive Management, and Maintenance of the Remedial Work. As

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set forth in the Remedial Plan that is appended to this Consent Decree as Appendix 3, Goose

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Pond Defendants shall monitor, adaptively manage, and maintain the success of the work

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required by Paragraph 26 of this Consent Decree for a period of five years following the

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completion of such work. During this five-year period, Goose Pond Defendants shall submit

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annual reports to the United States at the addresses specified in Section XI of this Consent

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Decree. Within thirty (30) Days of what Goose Pond Defendants believe is the completion of all

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monitoring, adaptive management, and maintenance tasks set forth in the Remedial Plan, Goose

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Pond Defendants shall submit a written request for approval of such completion, which approval

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shall not be unreasonably withheld. If the Corps disapproves, Goose Pond Defendants shall

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promptly correct the deficiencies as identified by the Corps in accordance with a scheduled

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approved by the Corps. Within thirty (30) Days of obtaining the Corps’ approval, Goose Pond

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Defendants shall provide written notice to the United States at the addresses specified in Section

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XI of this Consent Decree.

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28.

Recording of the Consent Decree in furtherance of Permanent Protections for the

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Conservation Reserve. Within thirty (30) Days of the Effective Date of this Consent Decree,

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Goose Pond Defendants shall record a certified copy of this Consent Decree with the Tehama

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County, California, recorder’s office. Within thirty (30) Days of such recording, Goose Pond

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Defendants shall provide written notice thereof, along with a true and correct copy of the

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recorded instrument, to the United States at the addresses specified in Section XI of this Consent

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Decree.

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29.

Use of the Balance of the Site.
a.

This Consent Decree does not prohibit Goose Pond Defendants and their

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agents, successors, and assigns from undertaking moderate non-irrigated cattle grazing in the

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Balance of the Site and the following associated activities: above-ground, non-toxic measures to

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control for weeds, pests, and invasive species; cattle corrals, for loading and unloading cattle

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outside of aquatic areas; use of gates, fencing, and earthen farm roads that currently exist in the

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Balance of the Site; and construction of a firebreak, if required by Tehama County, outside of

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aquatic areas. Goose Pond Defendants and their agents, successors, and assigns may also use the

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Balance of the Site for additional activities associated with and necessary to conduct moderate

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non-irrigated cattle grazing (such as installation and/or maintenance of T-posts or similar

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fencing, placement of above-ground water sources, and placement of earthen access roads for

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ingress and egress to/from cattle corrals), provided that Goose Pond Defendants first submit a

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plan with requisite information about the intended additional activities, including their location

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and impact if any on aquatic areas, to the Corps for its review and consent, which consent shall

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not be unreasonably withheld.

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b.

In the event that Goose Pond Defendants or their agents, successors, and

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assigns wish to undertake activities in the Balance of the Site that are not the activities described

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in Paragraph 29.a. above, Goose Pond Defendants shall, before initiating such other activities,

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provide written notification to the Corps fully describing the proposed activities and shall obtain

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from the Corps: (1) a written determination that no CWA section 404 permit is required for the

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proposed activities; or (2) a written verification of the applicability of a nationwide or regional

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CWA section 404 permit; or (3) an individual CWA section 404 permit. Subject to the

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provisions of Paragraphs 29.a. and 29.b., nothing in this Consent Decree prohibits any legal use

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of the Balance of the Site by Goose Pond Defendants and their agents, successors, and assigns.
c.

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At any time after one (1) year from the Effective Date of this Consent

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Decree, Goose Pond Defendants and their agents, successors, and assigns may, with respect to

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the Balance of the Site only, seek from the Corps a jurisdictional determination (which may

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include a wetland delineation). In making such jurisdictional determination, the Corps shall

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apply the then-applicable definition of “waters of the United States” and shall otherwise act in

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accordance with then-governing law. Goose Pond Defendants and their agents, successors, and

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assigns may thereafter conduct any activities otherwise consistent with then-governing law in

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areas determined by such jurisdictional determination (as may be modified on judicial review

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thereof) not to be “waters of the United States.” Further, as to those areas (i.e., areas within the

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Balance of the Site determined by such jurisdictional determination (as may be modified on

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judicial review thereof) not to be “waters of the United States”), Paragraphs 29.a. and 29.b.

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above shall cease being applicable to those areas. Nothing in this Consent Decree is intended to

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alter otherwise governing law or processes associated with jurisdictional determinations,

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including, for example, the duration of their validity.

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30.

Off-Site Compensatory Mitigation:
a.

Within sixty (60) Days of the Effective Date of this Consent Decree,

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Goose Pond Defendants shall submit to the Corps for its review and approval, which shall not be

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unreasonably withheld, a written proposal for the expenditure of three million five hundred fifty

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thousand dollars ($3,550,000) to purchase vernal pool establishment, re-establishment, or

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rehabilitation credits from one or more Corps-approved mitigation banks that serve the area

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encompassing the Site in Tehama County, California. To the extent that insufficient credits exist

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at such local banks, Goose Pond Defendants may propose to expend the remaining funds to

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purchase vernal pool establishment, re-establishment, or rehabilitation credits (or their functional

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equivalent) from nearby Corps-approved mitigation banks or from the National Fish and Wildlife

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Foundation’s In Lieu Fee Program for the Northwestern Sacramento Valley Vernal Pool Service

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Area.
b.

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Within thirty (30) Days of the Corps’ approval of the written proposal

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required by subsection (a) above, Goose Pond Defendants shall effect off-site compensatory

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mitigation by completing the total expenditure of no more and no less than three million five

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hundred fifty thousand dollars ($3,550,000) in accordance with the Corps’ approval under

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Paragraph 30.a. above, and by providing written notice of such completion to the United States at

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the addresses specified in Section XI of this Consent Decree.

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VI. SUBMISSIONS
31.

Each submission by Goose Pond Defendants under this Consent Decree shall be

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signed by an official of the submitting party and include a certification to the effect of the

13

following: “I certify under penalty of law that this document and all attachments were prepared

14

under my direction or supervision in accordance with a system designed to assure that qualified

15

personnel properly gather and evaluate the information submitted. Based on my inquiry of the

16

person or persons who manage the system, or those persons directly responsible for gathering the

17

information, the information submitted is, to the best of my knowledge and belief, true, accurate,

18

and complete. I have no personal knowledge that the information submitted is other than true,

19

accurate, and complete. I am aware that there are significant penalties for submitting false

20

information, including the possibility of fine and imprisonment for knowing violations.”

21

32.

The reporting requirements of this Consent Decree do not relieve Goose Pond

22

Defendants of any reporting obligations otherwise required by federal, state, or local law,

23

regulation, permit, or other requirement.

24

33.

Any information provided pursuant to this Consent Decree may be used by the

25

United States in any proceeding to enforce the provisions of this Consent Decree and as

26

otherwise permitted by law.

27
28

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2

VII. RETENTION OF RECORDS AND ACCESS
34.

Until three (3) years after termination of this Consent Decree pursuant to Section

3

XVI, Goose Pond Defendants shall retain, and shall instruct their contractors, consultants, and

4

other agents to preserve, all non-identical copies of all documents, records, or other information

5

(including electronically stored information) in their or their contractors’ or other agents’

6

possession or control, or that come into their contractors’ or other agents’ possession or control,

7

and that relate in any manner to Goose Pond Defendants’ performance of its obligations under

8

this Consent Decree. At any time during this information-retention period, upon request by the

9

United States, Goose Pond Defendants shall provide copies of any documents, records, or other

10

information required to be maintained under this Paragraph. If Goose Pond Defendants assert

11

that any information is protected from disclosure under any privilege or protection recognized by

12

federal law, and the United States disputes such assertion, the dispute may be resolved in

13

accordance with Section VIII of this Consent Decree.

14

35.

(Paragraph 35 is intentionally omitted.)

15

36.

The United States, including its contractors and/or consultants, shall have the

16

right to access the Site, at all reasonable times, with reasonable advance notice, in order to:

17

a.

monitor the progress of activities required under this Consent Decree;

18

b.

verify any data or information submitted to the Corps by or on behalf of

19

Goose Pond Defendants;

20

c.

21

Decree;

22

d.

23

26
27

obtain documentary evidence, including photographs and similar data, to
monitor or confirm compliance with this Consent Decree; and

24
25

obtain samples to monitor or confirm compliance with this Consent

e.

assess compliance with this Consent Decree.

Nothing in this Consent Decree is intended to alter otherwise governing law of premises liability.
37.

This Consent Decree in no way limits or affects the United States’ or the Corps’

otherwise existing rights of entry and inspection or any right to obtain information under

28

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Case No. 2:16-cv-01498-KJM-DB
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1

applicable law, nor does it limit or affect any otherwise existing duty or obligation of Goose

2

Pond Defendants to maintain documents, records, or other information.

3
4

VIII. DISPUTE RESOLUTION
38.

Unless otherwise expressly provided for in this Consent Decree, the Parties shall

5

attempt to resolve any and all disputes arising under or with respect to this Consent Decree

6

through the dispute resolution procedures of this Section (“Dispute Resolution”).

7

39.

A dispute shall be considered to have arisen when a written Notice of Dispute is

8

transmitted to the opposing party at the addresses specified in Section XI. Such Notice of

9

Dispute shall state clearly the matter in dispute.

10

40.

If after 30 Days of transmittal of the Notice of Dispute, the complainant concludes

11

that the Parties have reached an impasse, then the complainant may seek resolution of the dispute

12

by the Court. The Parties may continue to attempt to resolve the Notice of Dispute while the

13

matter is pending before the Court.

14

41.

The invocation of Dispute Resolution procedures under this Section shall not, by

15

itself, extend, postpone, or affect in any way any obligation of Goose Pond Defendants under this

16

Consent Decree, unless and until final resolution of the dispute so provides. Stipulated penalties

17

and interest, if applicable to the disputed matter, shall continue to accrue from the first Day of

18

violation, but payment shall be stayed pending resolution of the dispute as provided in Section X

19

of this Consent Decree. If Goose Pond Defendants do not prevail on the disputed issue,

20

stipulated penalties and interest, if applicable, shall be assessed and paid as provided in Section

21

X of this Consent Decree. If determined by the Court that Goose Pond Defendants did not

22

violate the Consent Decree, no stipulated penalty or interest shall be assessed.

23

(Paragraphs 42 and 43 are intentionally omitted.)

24
25

IX. FORCE MAJEURE
44.

“Force majeure,” for purposes of this Consent Decree, is defined as any event

26

arising from causes beyond the control of Goose Pond Defendants, of any person controlled by

27

Goose Pond Defendants, or of Goose Pond Defendants’ contractors or consultants that delays or

28

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Case No. 2:16-cv-01498-KJM-DB
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1

prevents the performance of any obligation under this Consent Decree despite Goose Pond

2

Defendants’ best efforts to fulfill the obligation.

3

45.

If any event occurs or has occurred that may delay the performance of any

4

obligation under this Consent Decree, whether or not caused by a force majeure event, Goose

5

Pond Defendants shall provide notice to the United States, at the addresses specified in Section

6

XI, within a reasonable time after Goose Pond Defendants first know or should know that the

7

event might cause a delay. Goose Pond Defendants shall also provide an explanation and

8

description of the reasons for the delay; the anticipated duration of the delay; all actions taken or

9

to be taken to prevent or minimize the delay; a schedule for implementation of any measures to

10

be taken to prevent or mitigate the delay or the effect of the delay; Goose Pond Defendants’

11

rationale for attributing such delay to a force majeure event if they intend to assert such a

12

defense; and a statement as to whether, in the opinion of Goose Pond Defendants, such event

13

may cause or contribute to an endangerment to public health, welfare or the environment. Goose

14

Pond Defendants shall include with any written notice required by this Section all relevant

15

documentation.

16

46.

If the United States agrees in writing that the delay or anticipated delay is

17

attributable to a force majeure event, the time for performance of the obligations under this

18

Consent Decree that are affected by the force majeure event may be extended for such additional

19

time as may be necessary to complete those obligations under the circumstances.

20

47.

If the United States does not agree that the delay or anticipated delay has been or

21

will be caused by a force majeure event, or does not agree to the extension of time sought by

22

Goose Pond Defendants, then Goose Pond Defendants may invoke Dispute Resolution

23

procedures under Section VIII of this Consent Decree.

24

48.

If Goose Pond Defendants invoke Dispute Resolution procedures under Section

25

VIII of this Consent Decree, Goose Pond Defendants shall have the burden of demonstrating that

26

the delay or anticipated delay has been or will be caused by a force majeure event; the number of

27

Days of delay or anticipated delay that was or will be caused by such force majeure event; that

28

the duration of the delay or the extension sought was or will be warranted under the

Consent Decree: USA / Goose Pond Defendants

Case No. 2:16-cv-01498-KJM-DB
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1

circumstances; that Goose Pond Defendants could not have foreseen and prevented such delay;

2

that Goose Pond Defendants exercised best efforts to prevent, avoid, minimize and mitigate the

3

delay and its effects; and that Goose Pond Defendants complied with the requirements of this

4

Section.

5
6

X. STIPULATED PENALTIES
49.

Goose Pond Defendants shall be liable for stipulated penalties to the United States

7

for violations of this Consent Decree in accordance with this Section, unless excused under

8

Section IX (Force Majeure). A violation includes failing to perform any obligation required by

9

this Consent Decree, including but not limited to any remedial work plan or schedule approved

10

under this Consent Decree, within the specified time schedules established by or approved under

11

this Consent Decree.

12

50.

Stipulated penalties shall accrue for violating this Consent Decree in the amount

13

of three thousand dollars ($3,000) per Day for each Day that the violation persists; however, an

14

insubstantial violation that is cured within seven (7) days of Goose Pond Defendants’ receiving

15

written notice from the United States or the Corps shall not incur penalties greater than ten

16

thousand dollars ($10,000).

17
18
19

51.

Stipulated penalties under this Section shall begin to accrue on the Day a violation

occurs and shall continue to accrue until the violation ceases.
52.

Except as provided in this Section, Goose Pond Defendants shall pay any

20

stipulated penalty within thirty (30) Days of receiving the United States’ written demand. Goose

21

Pond Defendants shall make any such payment in accordance with written instructions to be

22

provided by the United States. Upon such payment, Goose Pond Defendants shall provide

23

written notice thereof to the United States at the addresses specified in Section XI of this Consent

24

Decree.

25
26
27
28

53.

The United States may, in the unreviewable exercise of its discretion, reduce or

waive stipulated penalties otherwise due it under this Consent Decree.
54.

Any disputes concerning the amount of stipulated penalties or the underlying

violation that gives rise to the assessment of stipulated penalties are subject to the Dispute

Consent Decree: USA / Goose Pond Defendants

Case No. 2:16-cv-01498-KJM-DB
16

1

Resolution provisions of Section VIII. Stipulated penalties disputed by Goose Pond Defendants

2

and any applicable interest shall continue to accrue as provided in this Consent Decree, but need

3

not be paid until the following:

4

a.

If the dispute is resolved by agreement between the Parties, Goose Pond

5

Defendants shall pay the amount due under such agreement, together with any applicable

6

interest, to the United States within thirty (30) Days of the effective date of the agreement.

7

b.

If the dispute is taken to this Court, Goose Pond Defendants shall pay all

8

accrued penalties determined by the Court to be owing, together with any applicable interest, to

9

the United States within thirty (30) Days of receiving the Court’s decision, except as provided in

10

subparagraph c, below.

11

c.

If any party appeals the Court’s decision, Goose Pond Defendants shall

12

pay all accrued penalties determined to be owing, together with any applicable interest, to the

13

United States within fifteen (15) Days of receiving the final appellate decision.

14

55.

If Goose Pond Defendants fail to pay stipulated penalties according to the terms

15

of this Consent Decree, Goose Pond Defendants shall be liable for interest on such penalties, as

16

provided for in 28 U.S.C. § 1961, accruing as of the date payment became due. Nothing in this

17

Paragraph shall be construed to limit the United States from seeking any remedy otherwise

18

provided by law for Goose Pond Defendants’ failure to pay any stipulated penalties.

19

56.

The payment of stipulated penalties and interest, if any, shall not alter in any way

20

Goose Pond Defendants’ obligation to complete performance of the requirements of this Consent

21

Decree.

22

57.

Stipulated penalties are not the United States’ exclusive remedy for violations of

23

this Consent Decree. Subject to the provisions of Section IV, the United States expressly

24

reserves the right to seek any other relief it deems appropriate for Goose Pond Defendants’

25

violation of this Consent Decree or applicable law, including but not limited to an action against

26

Goose Pond Defendants for statutory penalties, additional injunctive relief, mitigation or offset

27

measures, and/or contempt. However, the amount of any statutory penalty assessed for a

28

Consent Decree: USA / Goose Pond Defendants

Case No. 2:16-cv-01498-KJM-DB
17

1

violation of this Consent Decree shall be reduced by an amount equal to the amount of any

2

stipulated penalty assessed and paid pursuant to this Consent Decree.

3

XI. NOTICES AND COMMUNICATIONS

4
5

58.

All notices and communications required under this Consent Decree shall be

made to the Parties through each of the following persons and addresses:

6

a.

TO THE UNITED STATES:

7

i.

8

14

LETITIA A. GRISHAW
Chief, Environmental Defense Section
ANDREW J. DOYLE
JOHN THOMAS H. DO
ANDREW S. COGHLAN
United States Department of Justice
Environment and Natural Resources Division
P.O. Box 7611
Washington, DC 20044
[e-mail]
[e-mail]
[e-mail]
DJ # 90-5-1-1-20800

15

AND

16

McGREGOR W. SCOTT
United States Attorney
GREGORY T. BRODERICK
Assistant United States Attorney
501 I Street, Suite 10-100
Sacramento, CA 95814
[e-mail]

9
10
11
12
13

17
18
19

TO THE DEPARTMENT OF JUSTICE:

20
21

ii.

TO THE CORPS:

25

A.L. FAUSTINO
District Counsel
U.S. Army Corps of Engineers
Sacramento District
1325 J Street, Room 1440
Sacramento, CA 95814
[e-mail]

26

AND

22
23
24

27
28

MICHAEL S. JEWELL
Chief, Regulatory Division

Consent Decree: USA / Goose Pond Defendants

Case No. 2:16-cv-01498-KJM-DB
18

1
2
3

U.S. Army Corps of Engineers
Sacramento District
1325 J Street, Room 1440
Sacramento, CA 95814
[e-mail]

4
b.

5
6
7
8

TO GOOSE POND DEFENDANTS:

i.
OLIVER WILLIAMS IV.
Goose Pond Ag, Inc.
197 Clarendon Street
Boston, MA 02116

TO GOOSE POND AG, INC.:

9
10
11
12

ii.
FARMLAND MANAGEMENT SERVICES:
PRESIDENT
Farmland Management Services
301 East Main Street
Turlock, CA 95380

13
iii.

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15
16
17
18
19
20
21
22
23
24
25

AND WITH COPIES TO:

PATRICIA WALL MUNDY
General Counsel
Hancock Natural Resources Group
197 Clarendon Street
Boston, MA 02116
[e-mail]
ROBERT P. SORAN, ESQ.
Downey Brand LLP
621 Capitol Mall, 18th Floor
Sacramento, CA 95746
[e-mail]
59.

Any Party may, by written notice to the Parties, change its designated notice

recipient or notice address provided above.
60.

Notices submitted pursuant to this Section shall be deemed submitted upon

26

mailing, unless otherwise provided in this Consent Decree or by mutual agreement of the Parties

27

in writing.

28

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Case No. 2:16-cv-01498-KJM-DB
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2

XII. COSTS OF SUIT
61.

The Parties shall bear their own costs of this action, including attorneys’ fees,

3

except that the United States shall be entitled to collect the costs (including reasonable attorneys’

4

fees) incurred in any action necessary to collect any portion of the civil penalty or any stipulated

5

penalties due but not paid by Goose Pond Defendants.

6
7

XIII. PUBLIC PARTICIPATION
62.

This Consent Decree shall be lodged with the Court for a period of not less than

8

30 Days for public notice and comment in accordance with 28 C.F.R. § 50.7. The United States

9

reserves the right to withdraw or withhold its consent if the comments regarding the Consent

10

Decree disclose facts or considerations indicating that the Consent Decree is inappropriate,

11

improper, or inadequate. Goose Pond Defendants consent to entry of this Consent Decree

12

without further notice and agree not to withdraw from or oppose entry of this Consent Decree by

13

the Court or to challenge any provision of the Decree, unless the United States has notified

14

Goose Pond Defendants in writing that it no longer supports entry of the Decree.

15

(Section XIV and Paragraphs 63 through 65 are intentionally omitted.)

16
17

XV. MODIFICATION
66.

The terms of this Consent Decree may be modified only by a subsequent written

18

agreement signed by all the Parties. Where the modification constitutes a material change to any

19

term of this Consent Decree, it shall be effective only upon the Court’s approval. Nothing in this

20

Consent Decree shall preclude Goose Pond Defendants from seeking modification of Paragraph

21

25 of this Consent Decree to conduct “establishment (creation)” (33 C.F.R. § 332.2) in upland

22

areas in the Conservation Reserve, in accordance with then-governing law. The United States

23

expresses no view on the merits or demerits of any such proposal, and nothing in this Consent

24

Decree is intended to alter the United States’ discretion in reviewing any such proposal.

25
26

XVI. TERMINATION
67.

This Consent Decree terminates eight (8) years following the Effective Date,

27

unless, at that time or at any time during the life of this Consent Decree, Goose Pond Defendants

28

are or were out of compliance with any provision of this Consent Decree, in which case this

Consent Decree: USA / Goose Pond Defendants

Case No. 2:16-cv-01498-KJM-DB
20

1

Consent Decree shall not expire until eight (8) years following the Effective Date plus the total

2

of all Days that Goose Pond Defendants were out of compliance with any provision of this

3

Consent Decree. In no event shall this Consent Decree terminate if Goose Pond Defendants

4

remain out of compliance with any provision of this Consent Decree.

5

68.

Irrespective of Paragraph 67 above, termination of this Consent Decree does not

6

extinguish: (a) Paragraph 25 above, and (b) Paragraph 36.c., 36.d., and 36.e. above insofar as

7

they apply to assessing compliance with Paragraph 25 for the Conservation Reserve. In addition,

8

termination of this Consent Decree does not affect the expiration of Paragraph 34 above because,

9

as provided in that Paragraph, it expires three (3) years after termination of this Consent Decree.

10

(Paragraphs 69 and 70 are intentionally omitted.)

11
12

XVII. SIGNATURES/SERVICE
71.

Each undersigned representative of Goose Pond Defendants and the United States

13

Department of Justice certifies that he or she is fully authorized to enter into the terms and

14

conditions of this Consent Decree and to execute and legally bind the party he represents to this

15

document.

16

72.

17

pages shall be given full force and effect, and its validity shall not be challenged on that basis.

18
19

This Consent Decree may be signed in counterparts, such counterpart signature

XVIII. INTEGRATION
73.

This Consent Decree constitutes the final, complete, and exclusive agreement and

20

understanding among the Parties with respect to the settlement embodied in the Consent Decree

21

and supersedes any prior agreements and understandings, whether oral or written, concerning the

22

settlement embodied herein. Other than Appendices hereto and modifications made effective in

23

accordance with Section XV of this Consent Decree, the Parties acknowledge that there are no

24

representations, agreements, or understandings relating to the settlement other than those

25

expressly contained in this Consent Decree.

26
27
28

Consent Decree: USA / Goose Pond Defendants

Case No. 2:16-cv-01498-KJM-DB
21

1
2

XIX. FINAL JUDGMENT AND RETENTION OF JURISDICTION
74.

Upon its approval and entry by the Court, this Consent Decree shall constitute a

3

final judgment of the Court as to the United States and Goose Pond Defendants. The Parties

4

waive any rights to appeal such final judgment.

5

75.

This Court retains jurisdiction over this action for the purpose of resolving

6

disputes arising under this Consent Decree, or entering orders modifying this Consent Decree, or

7

effectuating or enforcing compliance with the terms of this Consent Decree.

8
9

XX. APPENDICES
76.

The following Appendices are attached to and part of this Consent Decree:

10

a.

Appendix 1, which shows the Site’s location and boundary.

11

b.

Appendix 2, which shows the Conservation Reserve’s boundary.

12

c.

Appendix 3, which is the Corps-approved Remedial Plan.

13

(Remainder of page is intentionally blank.)

14
15
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21
22
23
24
25
26
27
28

Consent Decree: USA / Goose Pond Defendants

Case No. 2:16-cv-01498-KJM-DB
22

1

JEFFREY H. WOOD
Acting Assistant Attorney General
JONATHAN D. BRIGHTBILL
Deputy
orney Gene 1

2
3
4

Dated:.SG-~ 7 ~

/

, 2018
ANDR W J. D L
JOHN THO
. DO
ANDREW S. COGHLAN
United States Department of Justice
Environmental and Natural Resources Division
P.O. Box 7611
Washington, DC 20044
Telephone: [phone] (Doyle)
[e-mail]

5
6
7
8
9
10

McGREGOR W. SCOTT
United States Attorney
GREGORY T. BRODERICK

11

Assistant United States Attorney

12

14

501 I Street, Suite 10-100
Sacramento, CA 95814
Telephone: [phone]
[e-mail]

15

Attorneys for the United States

13

16
17
18
19
20
21
22
23
24
25
26
27
28

~ Consent Decree: USA /Goose Pond Defendants

Case No. 2:16-cv-01498-KJM-DB
23

1
2
3

Dated:

2018
Oliver Williams, IV
For: Goose Pond Ag, Inc.

4
5
6
7

Mark Hutson
For: Farmland Management Services

8
9
10
11
12
13
14

Approved as to form

15
16
17

DOWNEY BRAND LLP
ROBERT P. SORAN
621 Capitol Mall, 18th Floor
Sacramento, CA 95814-4731
Telephone: [phone]
[e-mail]

18
19
20
21

Attorneysfor Goose Pond Defendants

22
23
24
25
26
27
28

Consent Decree: USA /Goose Pond Defendants

Case No. 2:16-cv-01498-KJM-DB
24

2
3

Dated: -------, 2018

4

Oliver Williams, IV
For: Goose Pond Ag, Inc.

5
6
7

Mark Hutson
For: Farmland Management Services

8
9
10
11
12
13
14
15
16
17

20

DOWNEY BRAND LLP
ROBERT P. SORAN
621 Capitol Mall, 18th Floor
Sacramento, CA 95814-4731
Telephone: [phone]
[e-mail]

21

Attorneys for Goose Pond Defendants

18
19

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23
24
25
26
27
28

Case No. 2:16-cv-01498-KJM-DB

Consent Decree: USA / Goose Pond Defendants
24

1

IT IS SO ORDERED

2
3

Dated, entered, and made effective this 10th day of June, 2019.

4
5
6
7

____________________________________
UNITED STATES DISTRICT JUDGE
UNITED STATES DISTRICT JUDGE
UNITED STATES DISTRICT JUDGE

8
9
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25
26
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Consent Decree: USA / Goose Pond Defendants

Case No. 2:16-cv-01498-KJM-DB
25

Appendix 1 to Consent Decree: USA / Goose Pond Defendants

2:16-cv-01498-KJM-DB (E.D. Cal.)

616 acre Conservation Reserve with Coyote Creek

.
0

500

1,000

Feet

Appendix 2 to Consent Decree: USA / Goose Pond Defendants

2:16-cv-01498-KJM-DB (E.D. Cal.)

REMEDIAL PLAN
September 10, 2018
Purpose
The purposes of this Remedial Plan are: (1) to describe the planning, objectives, and implementation
of remedial work to be completed pursuant to Paragraph 26 of the Consent Decree; and (2) to
describe the planning, objectives, and implementation of monitoring, adaptive management, and
maintenance of the success of the remedial work pursuant to Paragraph 27 of this Consent Decree.
Project Goal and Objectives
The primary goal of the Remedial Plan is to “re-establish” surface water flows in specified areas that
generally focus on the Site’s main streams and swales. The term “re-establish” is used in a limited
sense; it is the United States’ contention that the Site’s surface water flow patterns and other aspects
of aquatic functioning cannot be fully restored because of the impact of the activities that occurred
there (and which are the subject of the United States’ Complaint). Goose Pond Defendants do not
agree with the United States’ contention, but they do agree to perform the remedial work and
monitoring, adaptive management, and maintenance as described herein.
The objectives of the remedial work are: (1) to minimize some of the impact of prior activities; (2) to
improve the current condition of surface water flow patterns by mimicking pre-2011 topography; (3)
to avoid directing high or medium energy (potentially erosive) surface water flows and sediment into
aquatic features; and (4) to revegetate remediated areas with a native seed mix and to take other
appropriate erosion and sediment control measures.
Planning
Goose Pond Defendants will prepare Site Grading Plans (Plans) that show the areas where work will
be done. The Plans will be sufficient to secure a grading permit, if required, from the County of
Tehama. The work areas will be consistent with the areas shown on Exhibit WP-1 and as described
in this Remedial Plan. Detailed sheets for each area are also given in this Remedial Plan (Appendix
A).
The Plans will show the areas to be graded or smoothed, the installation of erosion control measures,
and/or areas to be planted. The Plans will show grading limits, final elevations and flow lines. Work
will be designed to ensure that flow lines are established to allow surface water to flow within swales
to downstream areas without causing undue erosion. Any required engineering calculations related
to drainage and erosion control will be included in the grading plan set.
As set forth in Paragraph 26.a. of the Consent Decree, Goose Pond Defendants will provide the
Corps of Engineers with a 60% drawing set for comment and approval. The 60% drawing set shall
contain additional details about the remedial work and representative ground-level photographs to
help illustrate terminology (for example, the different remedial work to be done in “deeper gullies”
versus “smaller, shallower gullies” in Work Area 3).
1
Appendix 3 to Consent Decree: USA / Goose Pond Defendants

2:16-cv-01498-KJM-DB (E.D. Cal.)

Work Areas
The Work Areas in the Site are described in this Section. The Work Area numbers refer to Exhibit
WP-1. Work will largely be done in linear swales and their buffers as described below. More
detailed sheets for each specific corresponding Work Area are provided in Appendix A.
Work Area 1. Flattening and leveling of furrows within portion of shallow swale in slip plowed area.
The flow line for a swale adjacent to and/or within a graded farm road west of the PGE powerline
easement where slip plowing and/or scraping occurred and east of the PGE powerline easement,
where a several areas of the swale flow line are interrupted by a single or double pass of the slip
plow, will be repaired to “re-establish” unimpeded surface flow to the drainage north of Ohm Road.
Work will be conducted within approximately 900 feet of the length of the swale within a 60 foot
area along center line of swale. The swale was approximately 10 feet wide at this location such that
25 foot buffers will be provided on either side. Erosion control measures (e.g. coir fiber rolls) to be
placed along either side of the remediated area to control erosion, if occurring, from surrounding
uplands. Seeding with a native grass seed mix 1 will be done after grading.
Work Area 2. Flattening and leveling of furrows within three swales where slip plowed areas crossed
or occurred within the swale(s) and removal of fill in two small swales.
Two swales were crossed by the slip plowing on the western portion of the property and one swale
was almost entirely impacted by the slip plowing in an area east of the powerline corridor. Total
length of work is approximately 3000 ft. and work to be done within 70 foot wide area along center
line of the three swales. The swales range in width between 10-20 feet, so this will allow for a 25
foot buffer, at minimum on either side of the swales. Grade control may be necessary including coir
fiber rolls and/or rock berms across the regraded swale(s) in steeper locations where the gradient is
greater than 5% until revegetation is established. Erosion control measures (e.g. coir fiber roles) to
be placed along either side of 70 foot wide area to control erosion, if occurring, from entering the
remediated area. Seeding with a native grass seed mix will be done after grading.
In addition, fill placed in two swales west of the slip plowed areas will be removed to the original
contours of the swale and the flow line will be re-established so that water flows unimpeded
downslope.
Work Area 3. Repair of gullies sufficient to eliminate erosion at three locations at base of wetland
swales where they enter Coyote Creek.
One of two techniques will be used depending upon the severity of the erosion.
•

For deeper gullies, a rock berm will be placed at end of the gully to retain soil within the
filled portion of the gully. For some gullies, several rock berms may be required along its

1

A typical native seed mix will include Bromus carinatus, California Brome, Elymus glaucus, Blue Wildrye, Vulpia
microstachys, Three Weeks Fescue, Trifolium willdenovii, Tomcat Clover. Additional native grasses such as
Festuca rubra Molate/Molate Blue Fescue and Festuca occidentalis/Western Fescue may be added to the mix
depending upon availability.

2

Appendix 3 to Consent Decree: USA / Goose Pond Defendants

2:16-cv-01498-KJM-DB (E.D. Cal.)

length. Angular rock with diameters that averages 1/4 to 1/3 of the width of the channel bed
will be used. Erosion control fabric will be placed on the upstream portion of the berm to
reduce soil loss through the berm. The berm will be sloped up from Coyote Creek to allow
for flow to occur over the top of the berm. Upstream of the rock berm, native soil from the
site will be placed within the gully. The soil will be compacted to 85% compaction into gully
behind rock. Additional erosion control measures will be placed to slow down flows until the
area is revegetated using a native grass seed mix.
•

For smaller, shallower gullies, the head cut will be repaired by regrading the slopes and
placement of rock at the headcut. The sides of the gully will be regraded to create a gentle
slope on either side. Erosion control fabric will be used on the lower portion of the side
slopes. All work areas will be revegetated with native seed mix.

Work Area 4. Flattening and leveling of swale through slip plowed area.
The flow line of a swale that was crossed by slip plowing will be re-established by flattening and
removing the furrows that interrupted its flow. Approximately 500 feet of the swale will be leveled
within a 60 foot wide corridor. Erosion control measures (eg. coir fiber rolls) will be placed along
either side of remediated area. Seeding with a native grass seed mix will be done after grading.
Work Area 5. Flattening of dead furrows along the flow line of the swale
Furrows within seasonal wetlands within the seasonal wetlands of the large swale within the
Conservation Reserve will be smoothed by using small dozer/tractor. Prior to the work, the areas to
be smoothed will be marked in the field using flags. After smoothing, the native grass seed mix will
be applied to disturbed areas.
Work Area 6. Removing berms on either side of the farm roads where the roads crossed seasonal
swales at locations identified in WP-1.
During the grading of farm roads, berms resulted on one or both sides of the farm road. Where they
crossed swales, the berms will be removed. The surface will be graded to form a smooth transition to
hillslope grades on either side of the road as necessary to remove any impediments to flow. The soil
will be placed in upland areas 2 and graded to be consistent with and form smooth transitions to
surrounding topography. The total length of berms removed at various locations (on either side of the
farm road) is approximately 3000 ft. Seeding with a native grass seed mix will be done in the areas of
berm removal and soil disposal.
Work Area 7. Installation of erosion control measures on smoothed slope.
Where smoothing occurred along the slope adjacent to an existing swale, erosion control measures
will be installed to minimize soil erosion from entering waters and wetlands. The soil erosion control
2

“Upland” areas are those areas of dry lands that are outside the boundaries of streams, swales, open
ponded depressions, and other wetlands, including but not limited to areas delineated in the 1994
delineation boundaries.
3
Appendix 3 to Consent Decree: USA / Goose Pond Defendants

2:16-cv-01498-KJM-DB (E.D. Cal.)

measures will include placement of coir fiber rolls and seeding with native species erosion control
mix.
Work Area 8. Flattening and leveling of furrows in the upper portion of one swale where slip
plowing occurred.
Total length of the swale at this location is approximately 100 feet and work will be done within a 60
foot wide area along the center line of the swale to re-establish the surface water flow line. The
swale is approximately 10 feet wide, so a buffer of 25 feet will be provided on either side. Seeding
with a native grass seed mix will be placed after grading.
Work Area 9. Smoothing of disced areas and removal of fill in and proximate to vernal pools.
As shown on the aerial underlying Exhibit WP-1, discing occurred proximate to vernal pools and
there is fill material in vernal pools. A small tractor will be used to remove any fill, smooth all
disced areas, mimic the topographic condition of the features as they existed prior to 2011 (as guided
by the 1994 delineation), re-establish surface water connections, and eliminate erosion into the pools
and downstream.
Implementation
Sixty percent drawings will be provided to the Corps within 60 days following the Effective Date of
the Consent Decree. After the Corps approval, work will proceed and be completed during the first
available dry season following the Effective Date of the Consent Decree: May 1-September 30.
Work is anticipated to take approximately 60 days. Work areas will be delimited by flagging or other
appropriate means. Work will proceed under the supervision of the restoration scientist and/or
project engineer. Any dirt removed from the work areas will be retained on-site in upland areas as
defined in Footnote 2.
Work will follow the Plans as approved. Following grading, elevational surveys will be conducted
to assure flow lines are re-established. Rock work and erosion control measures will be installed as
designed. Seeding will be done near the beginning of the wet season that follows with a seed mix
(see Footnote 1) specified by the restoration scientist.
Maintenance, Monitoring, and Adaptive Management
Goose Pond Defendants will be responsible for conducting maintenance of the Work Areas.
Maintenance will include the following actions:

•
•

Prior to the winter, all erosion control measures will be assessed and maintained as necessary.
Following the first rain of greater than 1.5 inches, monitoring will be conducted to determine
if any Work Areas have exhibited erosion that require repair. Following visits, maintenance
actions will be implemented as needed to repair any damaged erosion control measures,
4

Appendix 3 to Consent Decree: USA / Goose Pond Defendants

2:16-cv-01498-KJM-DB (E.D. Cal.)

•

correct any changes in the expected flow lines in the swales, and to establish vegetative cover
sufficient to control surface soil erosion.
Photographs and records of actions taken will be made and included in the annual report to
the Corps of Engineers.

The monitoring will be conducted for five (5) years during the winter season at each of the work
areas. Representative ground based photographs will be taken at each of the Work Areas. In the
case of larger activities, such as Work Area 5, more representative photographs will be taken.
Monitoring will consist of field observations of surface water flow, any evidence of erosion into
aquatic areas, damage to erosion control measures requiring maintenance, and vegetative cover
relative to reference areas within the Conservation Reserve. Precipitation data for the adjacent Red
Bluff airport will be used to determine percent of normal rainfall for the monitoring period.
For vegetative cover, three reference sites will be selected within the Conservation Reserve that are
similar to the swales where flow lines are being re-established. For Work Area 9, three vernal pool
reference sites will be selected in the Conservation Reserve. The reference areas will be designated
on the 60% plans to be submitted to the Corps for approval. At each reference locations, total
vegetative cover will be recorded as well as the percent cover by species present within a
standardized quadrat in the bottom of the swale and in the adjoining upland buffer area. For vernal
pools, the reference sites will be the bottom of the pool and the adjoining upland edge. The Wetland
Plant Indicator status (using the most current plant list issued by the Corps) will be recorded for each
species. For each Work Area, replicate quadrats will be measured in a similar fashion.
Performance Criteria for the Work Areas include:
•
•
•
•
•
•

•

Re-establishment of natural flow lines through slip plowed areas for activities 1, 2, 4, 6, and
8.
Control of erosion within and along re-established swales in 1, 2, and 4.
Removal of erosion control gullies at three locations for activity 3.
Erosion control on side slope of wetland for activities 7 and 9
Filling and smoothing of large dead furrows for activity 5.
Total vegetative cover will be similar (within 95% confidence interval) to the average
recorded in the reference sites for both the swale bottom and the upland buffer or vernal pool
bottom and adjoining uplands, whichever is applicable.
Wetland Plant Indicator Status 3 will be similar to or wetter than the reference sites in the
Conservation Reserve based on a determination of the Prevalence Index 4.

3
Native grass seed will be used for the Work Areas, however, the Site is largely non-native annual grassland. These
non-native species produce abundant seed and will likely rapidly re-colonize the Work Areas following grading. At
present, the most dominant grass in swales within the Conservation Reserve is Festuca perennis, Italian ryegrass, a
FAC species. It is not expected that species diversity will be similar so the Wetland Plant Indicator Status will be
used to assess performance.
4
.Prevalence Index as described in the 2008 Arid West Regional Supplement to the Corps Manual.

5

Appendix 3 to Consent Decree: USA / Goose Pond Defendants

2:16-cv-01498-KJM-DB (E.D. Cal.)

An annual report will be submitted to the Corps in the spring following the first year of monitoring.
The Corps will notify Goose Pond if any corrective actions are needed prior to the next monitoring
year.
Adaptive management actions may be undertaken should any remediation be necessary. Adaptive
management actions may include additional erosion control measures outside of the buffer areas if
excessive erosion is noted that is contributing sediment to aquatic areas, additional seeding or a
different native seed mix as needed to reach expected plant cover or Prevalence Indicator, or other
actions that are appropriate to achieve the performance standards and meet the goals of the Remedial
Plan. Such adaptive management actions will be recommended to the Corps during the annual
monitoring reports and, if approved by the Corps, will be implemented.

6
Appendix 3 to Consent Decree: USA / Goose Pond Defendants

2:16-cv-01498-KJM-DB (E.D. Cal.)

Exhibit WP-1

6

9

9

5

9
5

4
1

6
8

5

6

6
5
2

2
2

2

6

6

6

6

2

6

2

7
5

3
3

3

1. Regrade approx 750 ft of
drainage through slip
plowed areas.
2. Regrade three swales
through slip plowed area.
Total length: 3000 ft
Remove fill from two
swales
3. Fill erosion gullies, compact
soils, and install erosion
control measures at 3
locations.
4. Regrade swales through
slip plowed area. Total
length 500 ft.
5. Remove dead furrows from
large swale by leveling.
Total length approx. 9000
ft. Number of dead
furrows varies.
6. Remove berms along roads
that cross swales. Total
length of berms to be
removed approx. 3000 ft
7. Control erosion on upland
slope on north side of
swale.
8. Regrade swale through slip
plowed area. Total length
100 feet.
9. Smooth disced areas
around edge of pools to
control erosion.

APPENDIX A: Work areas in the Site

8
Appendix 3 to Consent Decree: USA / Goose Pond Defendants

2:16-cv-01498-KJM-DB (E.D. Cal.)

Work Area: 1

Tehama County, California
Work Area
1 - Re-establish flow line
2 - Re-establish flow line
3 - Repair erosion gully
4 - Re-establish flow line
5 - Repair dead furrow where present
6 - Farm road berm removal
7 - Erosion control measures
8 - Re-establish flow line
9 - Fill removal & smoothing along edge
Selected flow line

1

5a 6c

4

5b

8
2a

6d

2b6a

6b
3c

±
0

100
Feet

200

9

6e
7

5c
5d

3b

3a

Work Area: 2a

Tehama County, California
Work Area
1 - Re-establish flow line
2 - Re-establish flow line
2 - Remove fill
3 - Repair erosion gully
4 - Re-establish flow line
5 - Repair dead furrow where present
6 - Farm road berm removal
7 - Erosion control measures
8 - Re-establish flow line
9 - Fill removal & smoothing along edge
Delineation 1994
Selected flow line

1

5a 6c

4

5b

8
2a

6d

2b6a

6b
3c

±
0

100
Feet

200

9

6e
7

5c
5d

3b

3a

Work Area: 2b

Tehama County, California
Work Area
1 - Re-establish flow line
2 - Re-establish flow line
3 - Repair erosion gully
4 - Re-establish flow line
5 - Repair dead furrow where present
6 - Farm road berm removal
7 - Erosion control measures
8 - Re-establish flow line
9 - Fill removal & smoothing along edge
Selected flow line

1

5a 6c

4

5b

8
2a

6d

2b6a

6b
3c

±
0

100
Feet

200

9

6e
7

5c
5d

3b

3a

Work Area: 3a

Tehama County, California
Work Area
1 - Re-establish flow line
2 - Re-establish flow line
3 - Repair erosion gully
4 - Re-establish flow line
5 - Repair dead furrow where present
6 - Farm road berm removal
7 - Erosion control measures
8 - Re-establish flow line
9 - Fill removal & smoothing along edge
Selected flow line

1

5a 6c

4

5b

8
2a

6d

2b6a

6b
3c

±
0

100
Feet

200

9

6e
7

5c
5d

3b

3a

Work Area: 3b

Tehama County, California
Work Area
1 - Re-establish flow line
2 - Re-establish flow line
3 - Repair erosion gully
4 - Re-establish flow line
5 - Repair dead furrow where present
6 - Farm road berm removal
7 - Erosion control measures
8 - Re-establish flow line
9 - Fill removal & smoothing along edge
Selected flow line

1

5a 6c

4

5b

8
2a

6d

2b6a

6b
3c

±
0

100
Feet

200

9

6e
7

5c
5d

3b

3a

Work Area: 3c

Tehama County, California
Work Area
1 - Re-establish flow line
2 - Re-establish flow line
3 - Repair erosion gully
4 - Re-establish flow line
5 - Repair dead furrow where present
6 - Farm road berm removal
7 - Erosion control measures
8 - Re-establish flow line
9 - Fill removal & smoothing along edge
Selected flow line

1

5a 6c

4

5b

8
2a

6d

2b6a

6b
3c

±
0

100
Feet

200

9

6e
7

5c
5d

3b

3a

Work Area: 4

Tehama County, California
Work Area
1 - Re-establish flow line
2 - Re-establish flow line
3 - Repair erosion gully
4 - Re-establish flow line
5 - Repair dead furrow where present
6 - Farm road berm removal
7 - Erosion control measures
8 - Re-establish flow line
9 - Fill removal & smoothing along edge
Selected flow line

1

5a 6c

4

5b

8
2a

6d

2b6a

6b
3c

±
0

100
Feet

200

9

6e
7

5c
5d

3b

3a

Work Area: 5a

Tehama County, California
Work Area
1 - Re-establish flow line
2 - Re-establish flow line
3 - Repair erosion gully
4 - Re-establish flow line
5 - Repair dead furrow where present
6 - Farm road berm removal
7 - Erosion control measures
8 - Re-establish flow line
9 - Fill removal & smoothing along edge
Delineation 1994
Selected flow line

1

5a 6c

4

5b

8
2a

6d

2b6a

6b
3c

±
0

100
Feet

200

9

6e
7

5c
5d

3b

3a

Work Area: 5b

Tehama County, California
Work Area
1 - Re-establish flow line
2 - Re-establish flow line
3 - Repair erosion gully
4 - Re-establish flow line
5 - Repair dead furrow where present
6 - Farm road berm removal
7 - Erosion control measures
8 - Re-establish flow line
9 - Fill removal & smoothing along edge
Delineation 1994
Selected flow line

1

5a 6c

4

5b

8
2a

6d

2b6a

6b
3c

±
0

100
Feet

200

9

6e
7

5c
5d

3b

3a

Work Area: 5c

Tehama County, California
Work Area
1 - Re-establish flow line
2 - Re-establish flow line
3 - Repair erosion gully
4 - Re-establish flow line
5 - Repair dead furrow where present
6 - Farm road berm removal
7 - Erosion control measures
8 - Re-establish flow line
9 - Fill removal & smoothing along edge
Delineation 1994
Selected flow line

1

5a 6c

4

5b

8
2a

6d

2b6a

6b
3c

±
0

100
Feet

200

9

6e
7

5c
5d

3b

3a

Work Area: 5d

Tehama County, California
Work Area
1 - Re-establish flow line
2 - Re-establish flow line
3 - Repair erosion gully
4 - Re-establish flow line
5 - Repair dead furrow where present
6 - Farm road berm removal
7 - Erosion control measures
8 - Re-establish flow line
9 - Fill removal & smoothing along edge
Delineation 1994
Selected flow line

1

5a 6c

4

5b

8
2a

6d

2b6a

6b
3c

±
0

100 200
Feet

9

6e
7

5c
5d

3b

3a

Work Area: 6a

Tehama County, California
Work Area
1 - Re-establish flow line
2 - Re-establish flow line
3 - Repair erosion gully
4 - Re-establish flow line
5 - Repair dead furrow where present
6 - Farm road berm removal
7 - Erosion control measures
8 - Re-establish flow line
9 - Fill removal & smoothing along edge
Selected flow line

1

5a 6c

4

5b

8
2a

6d

2b6a

6b
3c

±
0

100
Feet

200

9

6e
7

5c
5d

3b

3a

Work Area: 6b

Tehama County, California
Work Area
1 - Re-establish flow line
2 - Re-establish flow line
3 - Repair erosion gully
4 - Re-establish flow line
5 - Repair dead furrow where present
6 - Farm road berm removal
7 - Erosion control measures
8 - Re-establish flow line
9 - Fill removal & smoothing along edge
Selected flow line

1

5a 6c

4

5b

8
2a

6d

2b6a

6b
3c

±
0

100
Feet

200

9

6e
7

5c
5d

3b

3a

Work Area: 6c

Tehama County, California
Work Area
1 - Re-establish flow line
2 - Re-establish flow line
3 - Repair erosion gully
4 - Re-establish flow line
5 - Repair dead furrow where present
6 - Farm road berm removal
7 - Erosion control measures
8 - Re-establish flow line
9 - Fill removal & smoothing along edge
Selected flow line

1

5a 6c

4

5b

8
2a

6d

2b6a

6b
3c

±
0

100
Feet

200

9

6e
7

5c
5d

3b

3a

Work Area: 6d

Tehama County, California
Work Area
1 - Re-establish flow line
2 - Re-establish flow line
3 - Repair erosion gully
4 - Re-establish flow line
5 - Repair dead furrow where present
6 - Farm road berm removal
7 - Erosion control measures
8 - Re-establish flow line
9 - Fill removal & smoothing along edge
Selected flow line

1

5a 6c

4

5b

8
2a

6d

2b6a

6b
3c

±
0

100
Feet

200

9

6e
7

5c
5d

3b

3a

Work Area: 6e

Tehama County, California
Work Area
1 - Re-establish flow line
2 - Re-establish flow line
3 - Repair erosion gully
4 - Re-establish flow line
5 - Repair dead furrow where present
6 - Farm road berm removal
7 - Erosion control measures
8 - Re-establish flow line
9 - Fill removal & smoothing along edge
Selected flow line

1

5a 6c

4

5b

8
2a

6d

2b6a

6b
3c

±
0

100
Feet

200

9

6e
7

5c
5d

3b

3a

Work Area: 7

Tehama County, California
Work Area
1 - Re-establish flow line
2 - Re-establish flow line
3 - Repair erosion gully
4 - Re-establish flow line
5 - Repair dead furrow where present
6 - Farm road berm removal
7 - Erosion control measures
8 - Re-establish flow line
9 - Fill removal & smoothing along edge
Selected flow line

1

5a 6c

4

5b

8
2a

6d

2b6a

6b
3c

±
0

100
Feet

200

9

6e
7

5c
5d

3b

3a

Work Area: 8

Tehama County, California
Work Area
1 - Re-establish flow line
2 - Re-establish flow line
3 - Repair erosion gully
4 - Re-establish flow line
5 - Repair dead furrow where present
6 - Farm road berm removal
7 - Erosion control measures
8 - Re-establish flow line
9 - Fill removal & smoothing along edge
Selected flow line

1

5a 6c

4

5b

8
2a

6d

2b6a

6b
3c

±
0

100
Feet

200

9

6e
7

5c
5d

3b

3a

Work Area: 9

Tehama County, California
Work Area
1 - Re-establish flow line
2 - Re-establish flow line
3 - Repair erosion gully
4 - Re-establish flow line
5 - Repair dead furrow where present
6 - Farm road berm removal
7 - Erosion control measures
8 - Re-establish flow line
9 - Fill removal & smoothing along edge
Selected flow line

1

5a 6c

4

5b

8
2a

6d

2b6a

6b
3c

±
0

100
Feet

200

9

6e
7

5c
5d

3b

3a