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Weiszmann v. District Eng'r

ELR Citation: 13 ELR 20373
Nos. No. 74-469-CIV-EPS, 545 F. Supp. 721/18 ERC 1182/(S.D. Fla., 07/13/1982) Judgment for defendant on remand

On remand from the Fifth Circuit, 6 ELR 20219, the court holds that a developer who dredged two canals in a Florida wetland, while failing to obtain the requisite permits under §404 of the Federal Water Pollution Control Act and §10 of the Rivers and Harbors Act, must comply with a Corps of Engineer's restoration plan as modified by the court. The court rejects the developer's restoration plan, in which it proposed to connect a closed canal to a navigable canal. The court holds that even though this proposal has superior environmental benefits, in cannot approve the plan because the court does not have jurisdiction over the closed canal. Also, the court declares that it will not approve a plant that would require dredge and fill activity in navigable waters if approval would circumvent the Corps' permitting procedures. The court indicates that the developer can apply for a permit for its plan once it has complied with the Corps' restoration plan. The court holds that the Corps' plan, with minor changes to provide greater environmental benefits, is practicable and affordable and leaves the developer with saleable subdivision lots. Also, the court holds that the government plan is equitable in light of the gravity of harm and of the developer's cavalier disregard of previous court and Corps orders.

Counsel for Plaintiff
James T. Hendrick
Albury, Morgan & Hendrick
P.O. Box 1117, Key West FL 33040
(305) 296-5676

H. Ray Allen
605 Duval St., Key West FL 33040
(305) 294-0930

Fred Weiszmann
1356 Shermer Ave., Northbrook IL 60062
(312) 272-1800
*%Counsel for Defendants
Kenneth A. Reich
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4081