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ECC to receive $625k in lawsuit settlement

Contractor filled in protected wetland for parking lot

GENEVA – A St. Charles engineering company has agreed to pay Elgin Community College $625,000 to settle a lawsuit that involves the destruction of wetlands on college property.

According to a Nov. 5 settlement agreement disclosed through a Freedom of Information Act request, Willis Burke Kelsey Associates of St. Charles agreed to pay the community college to release all claims connected with a 2015 lawsuit the college filed against it and Phoenix Environmental and Associates Inc. of Gilberts.

The college had sued the companies – and they countersued – after the college was cited for illegally filling in a federally protected wetland in 2010 to expand a parking lot at its Elgin campus. The parking lot was part of the college’s expansion projects after a successful $178 million referendum in 2009.

The Army Corps of Engineers issued a citation against ECC on June 7, 2012, for filling in .2 acres of wetland in the Tyler Creek watershed with dredged construction material in violation of the Clean Water Act without a permit, records show.

Because a corps permit had previously been issued to the college in 1992 and in 2009 – meaning the location of wetlands on the site was already known to officials – the violation was “considered knowing, willing and flagrant,” the citation letter stated.

The corps’ citation warned that the college could face civil fines of up to $32,500 a day of violation and up to $50,000 a day of violation or even imprisonment.

In order to settle the Army Corps’ citation, the college applied for an after-the-fact permit and purchased 1.77 acres of wetland credits from Phoenix Environmental and Associates for $79,650 on July 6, 2011.

But after the Army Corps of Engineers determined the college actually filled in 5.52 acres of wetlands abutting Otter Creek, a tributary of the Fox River, it would not issue a permit to Phoenix for the college’s wetland credits, records show.

The U.S. Environmental Protection Agency issued an administrative consent order to the college requiring the creation, enhancement or restoration of 16.95 acres at the college’s Elgin site, plus a five-year monitoring program and the purchase of an additional four acres of wetland mitigation credits.

The college acquiesced, but filed suit Dec. 29, 2015, against Willis Burke Kelsey to recover $1.2 million for new wetland mitigation costs and more than $800,000 in legal fees for not noting the wetland’s existence. The college also sued Phoenix, seeking to recover the $79,650 it paid for wetland credits that were inadequate.

The companies filed counter claims that bounced back and forth in Kane County Circuit Court – even coming to the point of a trial scheduled in October – when all sides remaining in the lawsuit arrived at the settlement.

The college board voted unanimously Nov. 13 to approve the settlement and parties appeared in Kane County Circuit Court on Nov. 15 to inform Judge Kevin Busch.

The settlement agreement states that all sides make no admission of wrongdoing, deny any liability for damages claimed, and agree not to disparage the other parties publicly.

Elgin Community College attorney John Early said the settlement money would be returned to the tort fund, which is used for litigation.

Elgin Community College serves communities in Kane, DuPage, Cook, McHenry and DeKalb counties.

A final court date of Dec. 14 will close the case once the college receives payment.

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