12 ELR 20682 | Environmental Law Reporter | copyright © 1982 | All rights reserved


United States v. Carter

Nos. 81-0981, -0982-CIV-JWK (S.D. Fla. February 25, 1982)

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

[12 ELR 20682]

Kehoe, J.:

Order Containing Findings of Fact and Conclusions of Law

This cause came on for trial before the Court without a jury on December 21, 1981 and ended on December 24, 1981. At trial, documentary evidence was submitted, testimony taken and argument of counsel heard on all issues. After considering the record developed at trial, the Court now makes its Findings of Fact and publishes its Conclusions of Law:

Findings of Fact

1. This is a civil action under the Clean Water Act, 33 U.S.C. § 1311, et seq., to enjoin the Defendants from discharging fill material into the wetlands adjacent to Shark River Slough in the area known as the "East Everglades;" to compel the Defendants to do certain restoration work to ameliorate conditions caused by their filling activities; and to obtain a civil penalty under the Clean Water Act, 33 U.S.C. § 1319(b).

2. The site of the fill area in U.S. v. Russel Carter, et al., CA #81-0981, is an area of the East Everglades approximately 1/8 mile north of Chekika State Park and also north of 152nd Street (Coral Reef Drive) and west of Southwest 237th Avenue in Section 24, Township 55 South, Range 37 East, Dade County, Florida. The area of the fill is known as "Rocky Lakes Farms" (hereinafter: subject property).

3. On various dates between October 19, 1977 and May 1, 1981, the date of the filing of the Complaint in this case, Defendant Russell Carter, Jr., deposited, or caused to be deposited, crushed rock fill on the subject property. This fill was utilized to create six (6) approximately one-half acre to 2 1/2 acre fill pads on 5-acre lots for homesites. One of these fill sites was constructed by Russell Carter, Jr. and Timothy Turk. Defendant Carter also built a road on the subject property using crushed rock fill. These fill violations occurred after a Cease and Desist Order was issued by the U.S. Army Corps of Engineers. The subject property was approximately 120 acres in size and listed in the land records in the name of Russell Carter's wife, Theo Carter. The purpose of these fill pads is for mobile home sites, some of which are being sold by the Defendants under contracts for deed where they retain legal title until the total purchase price has been paid.Other lots in the original 120 acre Carter holding were sold by warranty deed and these fill sites are not a part of this litigation.

4. The site of the fill area in U.S. v. Thomas San-Cartier, CA #81-0982, is approximately 1 to 1 1/2 miles due west of the Carter property, approximately 1/2 miles northwest of Chekika State Park and also immediately north of 152nd Street (Coral Reef Drive) in Section 23, Township 55 South, Range 37 East, Dade County, Florida. The area of the fill is approximately 4 to 5 acres in size. On various dates, between September, 1979 and May 1, 1981, the date of the filing of the Complaint in this case, Defendant Thomas San-Cartier deposited crushed rock fill on the subject property for the purpose of establishing a grove of Mango seedlings. Both the fill pad and the Mango seedlings were placed after Defendant Cartier received two Cease and Desist Orders from the U.S. Army Corps of Engineers. Defendant Cartier added additional fill to the subject property in violation of an Order of this Court after litigation began.

5. The East Everglades area, of which the subject properties are a part, is the floodplain for the historic "river of grass" in South Florida and has been designated by local ordinance as an area of critical environmental concern. This area in its present natural state plays several vital roles in the life support systems of South Florida:

A. Flood Storage. The East Everglades historically and presently function as a flood storage area for Dade and Monroe Counties, retaining large quantities of surface water during flood periods.

B. Water Quantity. The East Everglades serves as the water recharge area for the Biscayne Aquifer which underlies the East Everglades. The Biscayne Aquifer serves as the sole source of Dade County and Monroe County drinking water supplies. All well fields for Dade and Monroe Counties tap into the Biscayne Aquifer. The subject properties are located above many of these well fields and it is possible for pollutants to enter the Aquifer at defendants' properties and then be carried to the Dade County public well fields.

C. Surface Water Supply. The East Everglades is directly upstream from the Everglades National Park. The entire Everglades system depends upon the seasonal supply of surface water flowing from the East Everglades into the Park.

D. Water Quality. The East Everglades acts as a natural filter system to maintain a high degree of water quality to the Biscayne Aquifer (and thus to public drinking water supplies) as well as the Everglades National Park. As a recharge area, it provides sufficient fresh water to the aquifer to maintain a fresh water hydraulic head which prevents intrusion of salt water from Biscayne Bay and thus preserves our water quality.

E. Wildlife Habitat. The East Everglades area serves as the habitat for numerous surviving rare endangered wildlife species.

6. Studies of the vegetation patterns on the subject properties reflect that the prevalent vegetation is sawgrass and periphyton algal mat. Specifically, transect studies performed by plaintiff's botanist, Charles Hilsenbeck, revealed that the sawgrass coverage on the Carter property ranged from 80% to 85% of the total area and on the Cartier property from 64% to 87% of the total area. Both sawgrass and periphyton algal mat are wetlands plants that are typically adapted for life in saturated soil conditions. Certain nonwetlands or transitional plant species are present on the subject property. However, they are tolerant to saturated soil conditions. A species of grass called Eleocharis is found on the subject properties. This species is only found in extremely wet areas.

7. Testimony was received from James Hartwell, surface water hydrologist, that the subject properties were under a condition of soil saturation 100% of the time. This damp, or wet condition is made possible through the operation of capillary attraction, which operates to saturate the surface even though the groundwater level is several feet below the surface.

8. In both the Carter and Cartier cases the subject wetlands [12 ELR 20683] are adjacent to and a part of the Shark River Slough, which is a tributary to the Gulf of Mexico and Florida Bay. A surface water connection exists between the subject properties, Florida Bay, and the Gulf of Mexico. Surface water leaves the subject property and flows in a southwesterly direction in the Shark River Slough, through the Everglades National Park and then into the Shark River, whose mouth is at the Gulf of Mexico. Some of these waters enter Whitewater Bay and then flow into Florida Bay and the Gulf of Mexico.

9. The subject properties are located below the headwaters of the Shark River Slough. These headwaters are located in the vicinity of the Tamiami Trail. Based upon United States Geological Survey water flow gauges, the average annual flow in the Shark River Slough at the Tamiami Trail is in excess of 5 cubic feet per second.

10. Defendants in both cases utilized a back-hoe to place fill material on the subject properties.

11. Prior to 1975 defendant Cartier had rock-plowed an area of wetlands on his property approximately 100' to 150' and planted tomatoes thereon. However, defendant Cartier testified he had never tried to destroy the wetland vegetation on the property as he did not rock-plow it that deep. Pre-fill aerial photography plus on-site inspection by U.S. Army Corp of Engineers personnel revealed that after this agricultural activity had ended and before the fill activity began the site had reverted to a wetlands habitat.

12. The fill activities on both of the subject properties and their attendant development have the potential for contaminating the Biscayne Aquifer and posing a threat to the drinking water supplies of Dade and Monroe Counties. The Dade County Public Health Department studied 36 private wells in the East Everglades. In reports dated September 18, 1981 and October 22, 1981, the Dade County Public Health Director reported a high incidence of water pollution in the East Everglades, to wit: "27 out of 36 samples collected show the presence of fecal and/or total coliform contamination of the groundwater inthe East Everglades area."

A. The subject properties are only 3 miles away from the area of the tested wells.

B. The groundwater contamination had occurred in an area where the average density was only 1 house per 20 acres, as opposed to the 1 house per 5 acres density proposed by the defendant Carter.

C. The presence of the fill disrupted the natural drainage characteristics of the subject property and constitutes a physical obstruction for the transport of organic and nutrient material into the Shark River Slough and eventually into the Gulf of Mexico.

D. This contamination was the result of a single flood in an area still only sparsely populated. Plaintiff's groundwater hydrologist, Garald Parker, the discoverer of the Biscayne Aquifer, emphasized that this contamination was a forewarning of what ultimately was to be the fate of the entire water supply of South Florida if the East Everglades became even mildly urbanized.

13. The following environmental damage either exists, or is threatened as a result of defendants' fill activities.

A. The presence of the fill constitutes an adverse influence to fish and wildlife values in an area designated as environmentally critical.

B. The presence of the fill reduces the capacity of the area to store and absorb storm and flood waters.

C. The presence of the fill disrupted and the natural drainage characteristics of the subject property and constitutes a physical obstruction for the transport of organic and nutrient material into the Shark River Slough and eventually into the Gulf of Mexico.

D. The presence of the fill reduces the area's capacity to recharge the Biscayne Aquifer and increases the potential for salt water intrusion into the Biscayne Aquifer.

E. The presence of the fill reduced the area available for filtration and purification of waters.

F. The presence of the fill destroyed valuable wetlands vegetation and habitat. The wetland vegetation serves as the food source base for all aquatic organisms in the wetlands and in the East Everglades and Shark River Slough. Loss of these plants on the sites of the fill pads constitutes a loss of food source for aquatic organisms and those animals which prey upon aquatic organisms.

Conclusions of Law

1. This Court has jurisdiction of the subject matter pursuant to 33 U.S.C. § 1319 and 28 U.S.C. § 1345.

2. The Clean Water Act, 33 U.S.C. § 1251, et seq., is a comprehensive effort by Congress to restore, and to maintain, the "chemical, physical and biological integrity of the nation's waters." Section 101(a), 33 U.S.C. § 1251(a). The cornerstone of the regulatory scheme established by the Act is § 301, 33 U.S.C. § 1311, which prohibits the discharge of pollutants into navigable waters except when in compliance with various sections of the Act, including § 404, 33 U.S.C. § 1344.1

3. The act of "discharging of a pollutant" occurred when Defendants utilized a backhoe and other similar equipment to deposit the crushed rock fill. The term "discharge of a pollutant" is defined in 33 U.S.C. § 1362(12) as "any addition of any pollutant to navigable waters from any point source." The term "point source" includes bulldozers, dump trucks and similar equipment used to place dredged or fill dredged or fill material. United States v. Weisman, 489 F. Supp. 1331, at 1337 [10 ELR 20698] (M.D. Fla. 1980); aff'd adopting district court's opinion. No. 80-5400, (5th Cir. November 4, 1980).

4. Dredged and crush rock fill are listed as "pollutants" in the Clean Water Act, 33 U.S.C. § 1362(6). See also United States v. Hamel, 551 F.2d 107 [7 ELR 20253] (6th Cir. 1977); Minnehaha Creek Watershed District v. Hoffman, 597 F.2d 617 [9 ELR 20334] (8th Cir. 1979).

5. "Navigable Waters" means "waters of the United States," 33 U.S.C. § 1362(7). This term is to be given the broadest constitutional interpretation under the commerce clause. CONF. REP. S. REP. NO. 92-236, 92d Cong. 2d Sess. 114, reprinted in 1972 U.S. CODE CONG. & AD. NEWS 3822. Accord. United States v. Ashland Oil and Transportation Co., 504 F.2d 1317, 1323-24 [4 ELR 20784] (6th Cir. 1974); Leslie Salt v. Froehlike, 578 F.2d 762, 754-55 [8 ELR 20480] (9th Cir. 1978); United States v. Byrd, 609 F.2d 1204 [9 ELR 20757] (7th Cir. 1979); Commonwealth of Puerto Rico v. Alexander, 438 F. Supp. 90, 95 [7 ELR 20751] (D.D.C. 1977); Wyoming v. Hoffman, 437 F. Supp. 114 [8 ELR 20001] (D. Wyo. 1977). United States v. Holland, 373 F. Supp. 665, 672-73 [4 ELR 20710] (N.D. Fla. 1974); United States v. Harmon, No. 77-393-CIV-CA (S.D. Fla. May 16, 1981).

6. The term "Waters of the United States" is defined at 33 CFR § 323.2(a)(3) to include tributaries to navigable waters of the United States, including adjacent wetlands.

7. The term "wetlnds" is defined at 33 CFR § 323.2(c), as follows:

(c) The term "wetlands" means those areas that the inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas.

As stated by Chief Judge Atkins in the recent case of United States v. Harmon, Civil Action No. 77-393-CIV-CA, S.D. Fla., in his Findings of Fact and Conclusions of Law, dated May 15, 1981, at page 23:

The Corps determination that certain lands are "wetlands" is based upon the prevalence of vegetative species that are typically adapted to saturated soil. This determination of prevalence of vegetation refers to the amount of area covered by wetland species, not to the number of wetland species vis-a-vis other vegetative species that appear on the land.

In the case of The Avoyelles Sportsmen's League, Inc. et al. v. Clifford L. Alexander, et al., CA #78-1428 (Avoyelles No. 2) [[12 ELR 20684]11 ELR 20321] W.D. La., Alexandria Division, Chief Judge Scott, in his Opinion dated March 12, 1981, at page 21, stated as follows:

We agree with plaintiffs that the words "vegetation typically adapted for life in saturated soil conditions" includes all vegetation which is capable of and does adapt regardless of a mechanism it might employ to do so. The scientific evidence esablishes that there is little or no dispute regarding which vegetable species are intolerant. The only discernible disputes occurred in the degree of tolerance assigned to each tolerant species by different scientific experts. These disputes are more a matter of semantics than actual differences of opinion because the definitional standards for the classificatons VT, T, and ST differed. However, they all had a common characteristic — they were all tolerant to a greater or lesser degree. None were intolerant. We hold that all species except the intolerant species are wetland species. (Emphasis added.)

Based upon the foregoing, this Court finds that the subject properties are wetlands because the scientific testimony has established that the prevalent vegetation in terms of area coverage on the subject properties is sawgrass and periphyton algal mat, both of which are wetlands species. To the extent that some non-wetland or transitional species were present on or around the fill site, scientific testimony from both sides established that these species were "tolerant" to saturated soil conditions. Thus we hold that the presence of these transitional species does not remove the subject properties from their classification as "wetlands" pursuant to 33 CFR § 323.2(c).

8. This Court finds that the subject properties, being wetlands, are adjacent to tributaries to navigable waters of the United States in that they are adjacent to Shark River Slough, which is a tributary to the Gulf of Mexico and Florida Bay, both of which are navigable waters of the United States.

9. This Court finds that Defendants failed to establish the applicability of 33 CFR § 323.4-2 to the facts of this case because unrefuted testimony from Plaintiff's experts established that both of the subject properties were below the "headwaters" as that term is defined in 33 CFR § 323.2(i). Further, Defendants failed to establish that the subject properties were "isolated wetlands." Defendants' experts mistakenly relied upon man-made barriers (the road on Defendant Cartier's property) as the basis for isolation from the Shark River Slough. However, 33 CFR § 323.2(d) defines the term "adjacent" as expressly including wetlands, separated by man-made barriers.

10. The Court finds that Defendant Cartier failed to establish that his property was subject to the agricultural exemption contained at 33 U.S.C. § 1344(f)(1) for "normal farming activities." Testimony established that only an area of 100' X 150' was rock-plowed and that the native wetland vegetation was either not disturbed or reclaimed that area long before filling took place. Thus, at the time of the fill activities, Defendant Cartier's property was a wetland and subject to the permit requirements of the Clean Water Act. As stated in A LEGISLATIVE HISTORY OF THE CLEAN WATER ACT, Volume III, at page 484-5, by Senator Stafford:

The bill includes the clarification that permits are not required for certain normal farming activities such as plowing and seeding which are not discharge of dredge or fill material. It should be noted, however, that permits will continue to be required for those farm, forestry, and mining activities that involved the discharge of dredge or fill material that convert water to dry land farming, for example, those occasional farm or forestry activities that involve dikes, levees, or other fills in wetlands and other waters. (Emphasis added.)

Also, legislative history indicates this exemption should be narrowly construed. Avoyelles Sportsmen's League v. Alexander (Avoyelles No. 1), 473 F. Supp. 525 [11 ELR 20315] (1979) at page 535, footnote 12. Further, this exemption applies only to ongoing agricultural activities. Avoyelles No. 1, supra, at page 535.

11. Finally the Court is buttressed in its conclusion that Defendant Cartier's land conversion activities are not exempt under 33 U.S.C. § 1344(f)(1) by the fact that 33 U.S.C. § 1344(f)(2) specifically takes away the exemption for activities that involve converting the use of the land. Avoyelles Sportsmen's League v. Alexander (Avoyelles No. 1), supra, at page 535.

Even assuming arguendo that Defendant Cartier's activities were "normal farming" the evidence demonstrated that these activities fell within the technical limitations in 33 U.S.C. § 1344(f)(2) in that his activities converted a wetlands area to another use where the reach of the water may be reduced or the flow or circulation of the water may be impaired.

12. The Court finds that the Defendants have violated the Clean Water Act by their filling activities. They were advised by Corps personnel of the permit requirements before they began their development schemes, yet they continued despite Cease and Desist Orders. They should not be allowed to profit from their illegal acts. University of Texas Medical Branch v. United States, 447 F.2d 438, 446 (5th Cir. 1977). Copper Liquor, Inc. v. Adolph Coors Co., 624 F.2d 575, 581 (5th Cir. 1980). Karle A. Hanson and Associates v. Farmers Corp. Creamery Co., 403 F.2d 65, 70 (8th Cir. 1968).

The United States has sought total restoration, civil penalties and permanent injunctive relief. It is hereby Ordered that a permanent injunction as to all further fill activities is granted. Insofar as restoration is concerned, the Court's Order as to restoration must be based upon a "comprehensive evaluation of the environmental factors involved and the practicalities of the situation." Weiszmann v. District Engineer, U.S. Army Corps of Engineers, 526 F.2d 1302, 1304 [6 ELR 20219] (5th Cir. 1976); U.S. v. Weisman, 489 F. Supp. 1331, 1342 at footnote 15 [10 ELR 20698] (M.D. Fla., 1980). Any consideration of restoration as a remedy must adhere to the following steps:

(1) the court must have jurisdiction over the portion of the property or activity to be directly affected by the restoration plan, and

(2) the court must conduct a hearing in which the merits, demerits, and alternatives to the restoration plan are fully developed. Once these preliminaries have been satisfied, the court may consider what restoration, if any, may be appropriate. The selected plan must: (1) confer maximum environmental benefits, (2) be achievable as a practical matter, and (3) bear an equitable relationship to the degree and kind of wrong which it is intended to remedy.

U.S. v. Weisman, supra, at p. 1343; see also U.S. v. Sexton Cove Estates, Inc., 526 F.2d 1203 [6 ELR 20216] (5th Cir. 1976).

The Court will thus reserve its ruling on restoration and also civil penalties in order to grant Defendants an opportunity to study the Government's restoration plan and present their objections and counter-proposals, if any, consistent with the above guidelines and Findings of Fact. A restoration hearing will be set by separate order.

DONE AND ORDERED in Chambers at Miami, Florida, this 25th day of February, 1982.

1. Section 404 establishes a program for the issuance of permits for the discharge of dredged and fill material subject to certain criteria and standards aimed at achieving the goals of the Act. Pursuant to § 404(a), the United States Army Corps of Engineers (hereinafter the "Corps") has responsibility for administering this permit program. The Corps is required to evaluate applications for such permits through the use of guidelines developed by the Environmental Protection Agency (hereinafter "EPA") in cooperation with the Secretary of the Army.


12 ELR 20682 | Environmental Law Reporter | copyright © 1982 | All rights reserved