United States v. Rivera Torres
Citation: 17 ELR 20813
No. No. 86-1917, 656 F. Supp. 251/25 ERC 1785/(D.P.R., 02/20/1987)
The court holds that the Federal Water Pollution Control Act (FWPCA) applies to Puerto Rico, and a mangrove forest located on firm, wet soil and separated from the sea by dunes is an "adjacent wetland" within the meaning of the Act. The court first rules that the FWPCA applies to Puerto Rico. Although the Puerto Rican Federal Relations Act grants the Commonwealth of Puerto Rico limited authority to make federal statutes inapplicable to Puerto Rico, it may not do so to maritime rules that Congress has made expressly applicable to Puerto Rico. Congress has done so in the FWPCA by including Puerto Rico in the definition of "State." Moreover, defendant has not cited any local legislation inconsistent with application of the FWPCA to Puerto Rico. Although FWPCA enforcement authority may be delegated to states and Puerto Rico, this has not occurred in Puerto Rico and the Army Corps of Engineers may enforce the FWPCA's provisions in Puerto Rico.
The court next holds that the mangrove forest of concern is a wetland under FWPCA implementing regulations, relying on the testimony of a Corps expert and the court's own visit to the site. The court also holds that a pending action in a local Puerto Rico court, brought in part by the Puerto Rico government and covering the same site and seeking similar relief, does not deprive the court of subject matter jurisdiction. Local authority is concurrent, not exclusive of federal authority, where federal authority has not been delegated. The court observes that the actions of local agencies and the Corps of Engineers do not conflict.
Turning to the Corps' request for a preliminary injunction, the court holds that the Corps has shown a substantial likelihood of success on the merits and that the public interest will be benefited by issuance of the injunction. The court finds that the wetlands are a valuable resource that the United States has a duty to protect. The defendant will, in all likelihood, continue to fill the wetlands unless an injunction is granted, causing serious damage, and damage that has already occurred will take at least eight to nine years for restoration. Consequently, there is an actual threat of serious harm, which outweighs the temporary delay of the defendant's plans to develop his property.
Counsel for Plaintiff
Daniel Lopez-Romo, U.S. Attorney
Room 101, Fed'l Office Bldg., Carlos E. Chardon St., Hato Rey PR 00918
Counsel for Defendant
Edelmiro Salas Garcia
Santurce PR 00908