An attorney for the owners of a popular Scarborough campground and farm disputed the federal government’s claims that they “filled wetlands” on their property, saying the family only settled to avoid a costlier legal battle.
But Bayley’s Camping Resort also faces more potential sanctions from Maine environmental regulators for allegedly filling in additional freshwater wetlands without first receiving state permits.
READ THE FEDERAL COMPLAINT
BAYLEY'S CAMPGROUND CONSENT DECREE
The owners of Bayley’s Camping Resort, Bayley Hill Deer and Trout Farm have agreed to restore nearly 65 acres of wetlands and pay a $227,500 civil penalty over alleged federal Clean Water Act violations dating back decades.
The U.S. Environmental Protection Agency’s case against Fred, Kathleen and Thomas Bayley and their related companies – FKT Resort Management LLC and FKT Bayley Family Limited Partnership – stems from work the Bayley family did on their farm and campground near the Pine Point area of Scarborough and Old Orchard Beach. That work was sometimes carried out in cooperation with state agencies.
Attorney Gene Libby pointed out that the Bayleys settled “without any admission of liability” and said the family never “filled in” wetlands but, instead, redeposited soil previously moved from the site. Libby also portrayed the EPA and U.S. Department of Justice as Goliath taking on David, in this case private property owners.
“We have two individuals who are both 77 (years old), and at this stage in their lives they simply do not have the stamina to engage in this sort of fight,” Libby said. “So clearly this is a compromise.”
COMPLEX LAWS TO NAVIGATE
The case of Bayley Camping Resort and Bayley Hill Deer and Trout Farm in many ways highlights the complexities for landowners trying to navigate the maze of state and federal environmental regulations, as well as the challenge of enforcing those laws.
The EPA alleges that the Bayleys placed fill and other materials in wetlands that are part of Scarborough Marsh at their Ross Road farm and at the campground. The agency contends the actions were done without first obtaining the necessary permits from the U.S. Army Corps of Engineers and constitute illegal discharges into the waterways.
At the campground, the EPA claims the Bayleys had discharged dredge or fill into 18 acres of designated wetlands since 1984 without first obtaining permits. As part of the settlement, the Bayleys agreed to restore a roughly 7-acre area known as the “goose pasture” that attracts waterfowl but that the campground has used for farming and other activities in the past.
But Libby suggested the EPA targeted the Bayley family for activities it undertook as part of a 450-acre waterfowl habitat restoration project in Scarborough Marsh. The Bayleys provided equipment, labor and $5,000 to rebuild an impoundment on state-owned land to create the wetlands, working with the Maine Department of Inland Fisheries & Wildlife as well as Ducks Unlimited.
As part of the project, Fred Bayley created the “goose pasture” for migratory birds with help and advice from the state. The Scarborough Marsh wetlands and pasture restoration even received a lengthy write-up in the Maine department’s magazine as an example of the state’s work to improve wildlife habitat.
While Libby said the EPA dropped initial charges for the dam work because it was on state-owned land, he said the Bayley family agreed to restore 7 acres of the pasture land “because it was the least expensive way to resolve the controversy.”
The family, however, is under additional scrutiny from the state for allegedly filling in other wetlands and improving areas of the property without permits.
FINE PAID, ALLEGATIONS DISPUTED
During a January 2015 inspection, DEP staff noted that up to 35,281 square feet of freshwater wetlands had been filled by the campground owners without a permit. Additionally, DEP staff noted 5.4 acres of newly developed campsites, an excavation area and a new road, all done without prior DEP approval.
The DEP issued a “notice of violation” to FKT Bayley Family Limited Partnership in March 2015. A department spokesman declined to comment because the case is still pending.
In the case of the farm property, the settlement with the EPA alleges that the Bayleys or their employees discharged materials into about 77 acres of wetlands and along about 3,773 feet of tributaries.
Libby countered that some of the work was done “with the advice and consent of” the Cumberland County Conservation District, which was formerly a part of the U.S. Department of Agriculture. Also, land clearing in 2007 was done under a provision of Maine law that allows farmers to convert freshwater wetlands into farm fields as long as the topography is not affected, Libby said.
“We don’t have a dredge-and-fill operation here,” he said. “We have a farmer creating farmland who ran into some restrictive regulations.”
But Bayley Hill Deer and Trout Farm paid a fine of more than $19,500 to the state three years ago for some of the same site work.
In May 2012, a Maine Department of Agriculture, Conservation and Forestry official inspected the farmland in response to the complaint about wetlands disturbance.
“It appeared as though the character of the land wasn’t significantly altered other than some smoothing,” inspector Matthew Randall wrote in his report.
EPA CONFIDENT IN SETTLEMENT
Ultimately, however, the Maine Department of Environmental Protection determined that the farm violated the state’s Natural Resources Protection Act by “removing or displacing” soil or vegetation and then filling a freshwater wetland without obtaining a permit. The Bayleys also built a culvert, a stream crossing and a road adjacent to the stream without a permit.
While the DEP’s May 2013 consent agreement with the Bayleys acknowledged Maine law allows wetland alterations for farming purposes, the settlement noted that “when the agricultural fields were created, some land topography was altered in the wetland areas.”
The Bayleys subsequently filed for “after-the-fact” permits from the DEP and restored some of the wetlands.
An EPA spokesman declined to comment Thursday when asked for a response to Libby’s statements.
“EPA and DOJ do not comment on our negotiations when reaching a settlement,” the statement from the EPA states. “However, the United States is confident that we have reached a fair and appropriate settlement in this matter.”
The EPA consent agreement is subject to a 30-day public comment period and court approval.
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