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United States v. Conrad

ELR Citation: 13 ELR 20532
Nos. No. 80-877-Civ-T-GC, 19 ERC 1736/(M.D. Fla., 03/22/1983)

The court, having found that defendants filled wetlands without a permit in violation of §404 of the Federal Water Pollution Control Act (FWPCA), now orders defendants to restore 23 acres of wetlands filled to build condominiums and pay a civil penalty of $100,000. The court concludes that the north percolating pond was an "adjacent wetland," not an "isolated wetland," because it was separated from a tidal canal by a berm that, at most, was 10 feet wide. Therefore, regardless of the legality of completing the berm without a permit, defendants' subsequent filling of the pond violated Army Corps of Engineers regulations. The court also rules that the berming of the pond constituted the unpermitted discharge of materials into navigable waters in violation of Corps regulations. In addition, the court finds that the berming of the western portion of the pond violated Corps regulations because it also constituted the unpermitted discharge into navigable waters of the United States.

The court rejects defendants' argument that, because the Corps allegedly misrepresented the scope of its jurisdiction, the government was estopped from bringing the case. The court rules that the act of granting a permit under the FWPCA is an exercise of the government's sovereign power and that the government cannot, as a matter of law, be estopped by the conduct of its agent. Finally, the court orders defendants to restore the filled wetland property and either to pay a civil penalty of $100,000 or deed a 200-acre area to Pasco County, Florida.

Counsel for Plaintiffs
David E. Dearing
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5777

Stephen C. Calvarese
Office of District Counsel
Army Corps of Eng'rs, P.O. Box 4970, Jacksonville FL 32201
(904) 791-1164

Counsel for Defendants
William B. Taylor IV, Claude H. Tison
MacFarlane, Ferguson, Allison & Kelly
P.O. Box 1531, Tampa FL 33601
(813) 223-2411