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United States v. Boccanfuso

Citation: 19 ELR 20493
No. No. B-87-298 (TFGD), 695 F. Supp. 693/(D. Conn., 09/01/1988)

The court holds that the federal government is estopped from alleging that defendant violated Federal Water Pollution Control Act (FWPCA) § 404 by placing fill material seaward of the high tide line without a permit. The court rules that estoppel is a valid defense against the government when an affirmative misrepresentation by a responsible government official induces another to act to his detriment, provided such reliance is reasonable and diligent efforts are made to comply with the law. The Corps affirmatively misled defendant by informing him that the Corps' jurisdiction extended only to the mean high water mark. Further, the Corps failed to respond to defendant's permit application for six months. Defendant's reliance on the Corps' affirmative misconduct has caused him to change his position to his detriment. Defendant's reliance was reasonable in light of the authorization by a Corps official for defendant to place riprap seaward of the high tide line, the Corps' acquiescence in the placement of the riprap, and the Corps' failure to respond in a timely manner to defendant's inquiries. Defendant exercised diligent efforts to comply with the law by submitting and following up on his permit application. The court holds that defendant cannot claim estoppel for an area in which he placed fill material seaward of the high tide line after the Corps informed him that its jurisdiction extended to the high tide line. The court holds that the government is not entitled to an injunction requiring restoration of this area, since it has not supplied a comprehensive evaluation of the environmental factors involved and a review of the practicality of the restoration. The court instead orders defendant to submit an after-the-fact permit application for this area. The court imposes a $ 2,000 fine under FWPCA § 309(d) for these violations.

Counsel for Plaintiff
Jeremiah Donovan, Ass't U.S. Attorney
141 Church St., P.O. Box 1824, New Haven CT 06508
(203) 773-2108

Counsel for Defendant
Michael Koskoff
Koskoff, Koskoff & Beider
350 Fairfield Ave., Bridgeport CT 06604
(203) 336-4421