United States v. Barba

No. PCA 75-94 (N.D. Fla. January 20, 1976)

In a suit brought under § 403 of the Rivers and Harbors Act of 1899 and § 301 of the Federal Water Pollution Control Act Amendments of 1972, defendants agree in a consent judgment to restore completely wetlands and marshes damaged by dredging, and to pay a civil penalty of $10,000.

Counsel for Plaintiff
J. Wroth Owen, Asst. U.S. Attorney
U.S. Courthouse
311 W. Monroe St.
Jacksonville FL 32202
(904) 791-2683

Charles W. Shipley
Pollution Control Section
Land & Natural Resources Division
Department of Justice
Washington DC 20530
(202) 739-5125

Counsel for Defendant
Jack S. Graff
2265 Palafax St.
Pensacola FL 32501
(904) 432-1461

[6 ELR 20248]

Arnow, J.:

FINAL JUDGMENT

The Complaint having been filed herein on July 23, 1975, and with plaintiff and defendants by their respective attorneys having consented without trial or adjudication of any issue of fact or law herein to the entry of this Decree, and without this Decree constituting any evidence or admission of any party hereto with respect to any issue of fact or law herein:

NOW THEREFORE, before the taking of any testimony, upon the pleadings, and without adjudication of any issue of fact or law herein, and upon consent of the parties hereto, it is hereby

ORDERED, ADJUDGED AND DECREED as follows:

This Decree shall operate only to the cause alleged against defendants with respect to activities carried out in Santa Rosa Sound, as described in the Complaint

This court has jurisdiction of the subject matter herein and of the parties hereto. The Complaint states a claim upon which relief can be granted against the defendants under §§ 403 and 1311 of Title 33 of the United States Code.

III

The provisions of this Decree shall apply and be binding upon the defendants, their agents, servants, successors, and all persons, firms and corporations acting under, through, for or in active concert or participation with said defendants.

As used herein the term "Santa Rosa Sound" means the waters of the Sound and adjacent marsh and wetlands, including those wetlands adjacent to the defendant's properties, known as Santa Rosa Shores.

After notice was given by the District Engineer, United States Army Corps of Engineers, Mobile, Alabama, that such work was to be commenced, the defendants implemented and carried out the restoration of wetlands and marsh areas in and adjacent to Santa Rosa Sound on the properties known as Santa Rosa Shores under the supervision and subject to the approval of the District Engineer. Restoration consisted of restoring the project areas 1, 2, 3, and 4 (as shown on Exhibit A)^* to pre-project conditions by:

(a) Area No. 1 — The small pond and adjacent area was restored as shown on Exhibit B to re-establish a marsh which approximated the 2.5 acres of marsh destroyed in this area. The re-established marsh area was sprigged with naturally occurring marsh grasses and vegetation. Adequate fresh water runoff from upland areas is now and will be diverted into the upper reaches of the re-established marsh.

(b) Area No. 2 — All the fill which comprised the dam was removed. The fill was placed in an upland area and the pond is not to be dredged further to maintain its depth.

(d) Area No. 4 — The fill which comprised the dam was removed and the fill was placed in the pond to create a depth as uniform as possible. A dam was constructed diagonally as shown on Exhibit C. No further maintenance dredging is to be allowed in this area.

The District Engineer has advised the court that the restoration work referred to in paragraph IV of this Decree has been completed and is satisfactory.

From the date of entry of this DECREE, the defendants, their agents, servants, successors, and all persons, firms and corporations acting under, through, for or in active concert or participation with said defendants, are permanently enjoined from dredging and depositing spoil or refuse, or in any manner altering the course, or in any was encroaching on the wetlands of Santa Rosa Sound without having first obtained permits from appropriate federal, state, and local agencies.

VII

The defendants shall pay to the United States of America a civil penalty of $10,000 within 180 days of the entry of this Decree, the defendants shall deliver to Nickolas P. Geeker, Acting United States Attorney for the Northern District of Florida, a check for the above sum payable to the treasurer of the United States of America.

* Exhibits omitted. — Ed.