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United States v. Tull

Citation: 17 ELR 20081
No. No. 85-649-N, (E.D. Va., 08/01/1986)

The court holds that a trailer park developer violated the Federal Water Pollution Control Act (FWPCA) and the Rivers and Harbors Act (RHA) by draining and filling wetlands on Chincoteague Island, Virginia, without obtaining permits from the Army Corps of Engineers. The federal government brought this action, one of several filed against defendants for illegal filling of wetlands, for injunctive relief and civil penalties. The court first orders defendants to notify every potential buyer of the land at issue and any persons that bought land from defendants that the land is subject to the court's order. The court then holds tht defendants' filling of a section of their trailer park subdivision was wanton and willful. After being informed by the Corps that this area was a wetland, defendants deliberately blocked the tidal entrances and filled the area. Further, defendants prevented government agents from entering the area, even after the agents obtained a court order. In view of defendants' practice of filling in lands without seeking permits and then forcing the government to try to prove that the filled lands were wetlands, the court permanently enjoins defendants from filling the area, from disturbing any earth or vegetation, and from placing any equipment in this area that is capable of moving fill material or vegetation. The court further orders defendants to immediately cease and desist all filling operations, and to restore filled lands unless the Corps issues an after-the-fact permit for this prior filling. The court orders defendants to pay a $20,000 fine for the filling of wetlands in this area.

The court holds that defendants' filling activity on a separate lot violated the FWPCA. The court holds that this lot satisfies the definition of a wetland since it is adjacent to a tributary. The court holds that defendants' filling on this lot was not wanton and willful, but orders defendants to immediately cease and desist all filling operations within 10 feet of these wetlands. The court orders defendants to restore the area unless they obtain a permit from the Corps, to apply for a Corps permit, and to pay a $1,000 fine for the filling of wetlands in this lot. The court holds that the Corps may have access to defendants' land to monitor defendants' compliance with the court's order.

The court next holds that two culverts are navigable waterways under the RHA and the FWPCA and orders defendants to remove the tide gates they placed at these culverts. The court orders defendants to remove one of the gates or face a progressively increasing civil fine, and to either remove the other gate or remove all blockage from a drainage canal they closed in 1969. The court fines defendants $10,000 under the RHA for installation of the gates without a permit. The court holds that a drainage canal through which defendants propose to build a road is anavigable waterway and orders defendants to immediately cease and desist from this project, to apply for a Corps permit, and to remove any fill placed in the area if the permit is denied. Finally, the court orders defendants to pay the government's attorneys fees and costs for all phases of the trial except for the portion of the trial concerning the separate lot.

The full text of the opinion is available from ELR (12 pp., $3.50, ELR Order No. C-1355). The bench opinion issued by the court on May 13, 1986, is also available (49 pp., $6.00, FLR Order No. C-1356).

Counsel for Plaintiff
John Kane, Ass't U.S. Attorney
U.S. Cthse., 600 Granby St., Norfolk VA 23510
(804) 441-6331

David E. Dearing, F. Henry Habicht II
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2741

Counsel for Defendants
Richard Nageotte
Nageotte, Borinsky & Zelnick
14908 Jefferson Davis Hwy., Woodbridge VA 22191
(703) 643-2202

Doumar, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]