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United States v. Carter

ELR Citation: 13 ELR 20307
Nos. Nos. 81-0981, -0982-CIV-JWK, 18 ERC 1810/(S.D. Fla., 12/21/1982) Mandatory injunction issued

The court, having previously ruled, 12 ELR 20682, that defendants filled in wetlands of the East Everglades, Florida without a permit in violation of §404 of the Federal Water Pollution Control Act (FWPCA), now orders defendants to restore the illegally filled sites. Initially, the court finds that the government's proposed restoration plan would confer maximum environmental benefits since it provides for the natural rejuvenation of wetland species. In addition, the government's plan is practical and equitable in light of defendants' willful violation of the FWPCA and the importance of wetlands to the life support systems of South Florida. Next, the court concludes, based on congressional intent and relevant case law, that restoration is an authorized and appropriate remedy under the Act. In addition, it rules that, when assessing whether a restoration plan confers maximum environmental benefits, a court must consider the cumulative as well as the direct effects of the illegal fill activity. In conclusion, the court orders defendants to complete the government's restoration plan by August 1, 1983, and permanently enjoins defendants from further fill activities on the property.

Counsel for Plaintiff
Michael Mitchell, Ass't U.S. Attorney
155 S. Miami Ave., Miami FL 33130
(305) 350-4471

Stephen D.C. Calvarese, Ass't Dist. Counsel
Jacksonville Dist., Army Corps of Engineers, P.O. Box 4970, Jacksonville FL 32232
(904) 791-3761

Counsel for Defendants
Jose E. Martinez
English, McCaughan & O'Brien
201 Alhambra Circle, Suite 1200, Coral Gables FL 33134
(305) 448-6000

Charles J. Crowder
Turner, Fascell & Russo
2222 Ponce de Leon Blvd., Coral Gables FL 33134

Counsel for Amici Curiae Sierra Club et al.
Joseph Z. Fleming
Fleming & Huck
25 SE 2d Ave., Miami FL 33131
(305) 373-0791

Lewis W. Miles II
245 SE 1st St., Suite 403, Miami FL 33131
(305) 358-4026