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United States v. Lambert

Citation: 14 ELR 20588
No. No. 81-255-Orl-Civ-R, 589 F. Supp. 366/21 ERC 1138/(M.D. Fla., 06/11/1984) Judgment for plaintiff

The court rules that portions of defendants' property are wetlands that were filled in violation of the Federal Water Pollution Control Act (FWPCA) and orders partial restoration of the filled areas. The court first rules that plaintiff has met its burden of proving by a preponderance of the evidence its claim that defendants' property contained three fingers of wetland connected with a wetland bridge. In evaluating the evidence, the court gives substantial deference to the conclusions of government witnesses, but declines to apply an arbitrary and capricious standard since the government's position on the wetland status was merely evidence presented at trial, not a formal decision of the agency. The court rules that defendants' wetlands are adjacent to a navigable water, the Banana River, and thus within the Corps of Engineers' jurisdiction, despite some physical separation between the river and the wetlands. There is proof of both a surface water connection that on some occasions brings water onto defendants' property and a groundwater connection. There was no showing that the Banana River has a flow of less than five cubic feet per minute; defendants, therefore, are not entitled to the benefit of the nationwide general permit for filling in headwaters. Defendants' filling activities were illegal.

Turning to remedies, the court first rules that the FWPCA authorizes it to order restoration and to impose a civil penalty, but does not require a restoration order. It concludes that restoration would be inequitable for one wetland area that is in transition to dry land land lacks aproven surface water connection to a navigable water. Evidence of defendants' profits from filling this area is open to question and, in any event, the purpose of FWPCA sanctions is to protect the environment, not to punish those trying to improve their property. In addition, the court finds evidence of ammonia pollution from this fill area too speculative to warrant removal of the fill. With regard to a second wetland, near which defendants excavated a six-acre lake, the court rules that the excavation itself was not a violation of the FWPCA and any illegal fill was either removed or insignificant. There is no conclusive evidence of ammonia pollution from the lake reaching the navigable water, so there is no justification for an order to fill the lake. The third wetland area, however, the court rules, must be restored. It is closely connected to the navigable water. The court (1) orders the parties to prepare restoration plans providing among other things for inspections by Environmental Protection Agency officials, (2) defers decision on a civil penalty until it receives the plans, and (3) permanently enjoins any further filling of the wetlands. In addition, the court rules that no civil penalty should be assessed against defendant Mrs. Lambert, since she was not involved in the illegal filling, but concludes that the penalty levied on her husband will be a lien on defendants' joint interest in the property.

Counsel for Plaintiff
Lawrence R. Liebesman
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2807

Steven C. Calvarese, Ass't District Counsel
U.S. Army Corps of Engineers
P.O. Box 4970, Jacksonville FL 32232
(904) 791-3761

Counsel for Defendants
Allen C.D. Scott II
Maxwell & Scott
12 N. University Blvd., Jacksonville FL 32211
(904) 721-3280