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Weiszmann v. District Eng'r

Citation: 6 ELR 20219
No. No. 75-1710, 526 F.2d 1302/8 ERC 1663/(5th Cir., 02/17/1976)

A lower court judgment requiring restoration of two canals constructed above the mean high tide line without a Corps of Engineers permit is partially reversed and remanded. The district court erred in ordering restoration of canal no. 2 which has not been connected to navigable waters since it is not subject to the Corps' dredge and fill jurisdiction. A permit is necessary for canal no. 1, however, because it is connected to a pre-existing canal which opens onto navigable waters. This connection and the unavoidable discharge of sediment associated with dredging necessarily modified the course of both the pre-existing canal and those waters. Moreover, while canal no. 1 does not actually carry commerce and is not open to public traffic, it is clearly capable of commercial use and is navigable in fact. Plaintiff's assertion of equitable estoppel and laches as defenses against the Corps' exercise of jurisdiction is also unavailing. The district court correctly held that discharge of sediment from dredging canal no. 1 constituted a violation of § 301(a) of the 1972 Federal Water Pollution Control Act Amendments' prohibition against the discharge of a "pollutant." Nor can the appeals court second guess the amount of the civil penalty imposed for this violation; the imposition of a $5,000 fine is affirmed. The restoration order as to canal no. 1 is vacated and remanded, however, for an evidentiary hearing to afford plaintiff an opportunity to present objections to the manner of restoration ordered.

Counsel for Plaintiff-Appellant
David Paul Horan
517 Whitehead St.
Key West FL 33040
(305) 294-4585

Counsel for Defendants-Appellees
David MacIntosh, U.S. Attorney
300 Ainsley Bldg.
Miami FL 33132
(305) 350-4471

Charles E. Biblowitz
Department of Justice
Washington DC 20530
(202) 739-4497

Dyer, J. for himself, Bell & Ainsworth, JJ.