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United States v. Weisman

Citation: 10 ELR 20698
No. No. 79-137-Civ.-Oc., 489 F. Supp. 1331/17 ERC 1580/(M.D. Fla., 05/15/1980)

In an action brought by the United States for civil penalties and injunctive relief, the court rules that the construction of a roadway through a wetlands without a permit from the Army Corps of Engineers violates § 404 of the Federal Water Pollution Control Act (FWPCA) and § 10 of the Rivers and Harbors Act of 1899. The court first determines that since the dump trucks and bulldozers used to construct the roadway were "point sources" and the fill material was a "pollutant" within the meaning of § 502 of the FWPCA, defendant was required to obtain a § 404 permit prior to the discharge of the material into the waters of the United States. The court then determines that the Corps has jurisdiction to regulate the defendant's property because it constitutes "adjacent wetlands" and thus is part of the "waters of the United States" as defined in § 502 of the FWPCA. The court also holds that the tidal creeks on the landowner's property constitute "navigable waters of the United States" within the meaning of § 10 of the Rivers and Harbors Act of 1899, so that the placing of fill below the high-water line without a § 404 permit violated § 10. In addition to imposing civil penalties authorized by § 309(d) of the FWPCA for violation of §§ 301(a) and 404, the court concludes that the restoration of the land to its original state is a proper remedy because it would be of maximum benefit to the environment, is achievable as a practical matter, and is not unduly burdensome to defendant.

Counsel for Plaintiff
Ernst D. Mueller, Ass't U.S. Attorney
P.O. Box 600, 409 P.O. Bldg., 311 W. Monroe St., Jacksonville FL 32201
(904) 791-2682

Counsel for Defendant
Barry S. Sinoff
Sinoff, Edwards & Alford
2400 Independent Sq., One Independent Dr., Jacksonville FL 32202
(904) 355-3311

William J. Roberts
217 S Adams St., P.O. Box 1386, Tallahassee FL 32302
(904) 224-5169

Dock A. Blanchard
Tucker, Hicks, Blanchard, Brannen & Stillwell
520 SE Ft. King St., P.O. Box 24, Ocala FL 32670
(904) 732-7218