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United States v. Carter

Citation: 12 ELR 20682
No. Nos. 81-0981, -0982-CIV-JWK, 18 ERC 1804/(S.D. Fla., 02/25/1982) Judgment for plaintiff

The district court rules that defendants discharged fill material into wetlands of the East Everglades, Florida without a Corps of Engineers permit in violation of § 404 of the Federal Water Pollution Control Act (FWPCA). Defendants, despite receiving cease and desist orders from the Corps, proceeded to engage in fill activities on their separate properties. Initially, the court determines that defendants discharged pollutants when they used a backhoe and other similar equipment to deposit crushed rock fill onto their land. Based upon scientific testimony that the prevalent vegetation on the fill sites consisted of wetlands species, the court concludes that the subject properties constitute wetlands. In addition, the wetlands are adjacent to Shark River Slough, a tributary to navigable waters of the United States, and are therefore waters of the United States. The court rejects defendant Cartier's contention that his property was subject to the agricultural exemption in § 404(f)(1) of the FWPCA for normal farming activities since he intended to establish a mango seedling grove on the fill site. Instead, the court rules that the property was a wetland at the time of the fill activities since the native wetland vegetation was either not disturbed or was reclaimed prior to such activities. Furthermore, under § 404(f)(2) land conversion activities are excluded from the § 404(f)(1) exemption. In conclusion, the court enjoins defendants from all further fill activities and postpones ruling on restoration and civil penalties pending study of the government's restoration plan.

[The pleadings in this case are summarized at ELR PEND. LIT. 65734 — Ed.]

Counsel for Plaintiff
Atlee W. Wampler III, U.S. Attorney; Michael J. Mitchell
155 S. Miami Ave., Miami FL 33130
(305) 350-5486

Counsel for Defendants
Pamela Olson Scott
Leib & Martinez
201 Alhambra Circle, Ponce de Leon Plaza, Coral Gables FL 33134
(305) 448-6000