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United States v. Malibu Beach, Inc.

Citation: 19 ELR 21247
No. No. 88-4742, 711 F. Supp. 1301/29 ERC 1920/(D.N.J., 04/27/1989)

The court holds that the government is entitled to injunctive relief under the Federal Water Pollution Control Act (FWPCA) to effectuate removal of existing fill material from a New Jersey beach and to bar further fill activity at the site. The court first holds that the government established a strong likelihood of success on its claim that defendants placed fill in waters of the United States and on adjacent wetlands without an Army Corps of Engineers' permit in violation of FWPCA § 404. Testimony firmly establishes that a pool of water on the beach was subject to the ebb and flow of the tides, until fill activities began on the property, and is therefore within the Corps' jurisdiction under the FWPCA. The court then holds that the government has demonstrated that wetlands exist on the beach which are adjacent to waters of the United States. The court holds that the government made a sufficient showing of irreparable harm caused by defendant's disposal of fill material at the beach. The tidal pool and the wetlands provide a wildlife habitat, a stopover and feeding ground for migratory birds, and a nesting ground. The availability of other feeding or nesting grounds does not eliminate the potential injury if the fill were to remain on the property, precluding the passage of water to the pool. Finally, the court holds that the potential economic harm to defendants is minimal compared to the potential damage to the environment if injunctive relief is not granted. The injunction would further the public interest in maintaining clean waters and preserving the surrounding environment.

Counsel for Plaintiff
James C. Woods, Ass't U.S. Attorney
Federal Bldg., 970 Broad St., Newark NJ 07102
(201) 621-2700

Letitia J. Grishaw, Margaret Kane Harrington
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-3170

Counsel for Defendants
Richard M. Hluchan
Drinker, Biddle & Reath
1202 Laurel Oak Rd., Ste. 105, Voorhees NJ 08043
(609) 627-8000