United States v. Board of Trustees of Florida Keys Community College

No. 80-2894-Civ-CA (S.D. Fla. July 27, 1982)

The court, which previously found the board of trustees in violation of the Federal Water Pollution Control Act and the Rivers and Harbors Act for filling a slough on the college campus without a permit, 12 ELR 20391, now offers the board two mitigation options. The board proposeda mitigation project consisting of planting mangroves in a nearby boat basin. But based on the testimony of the government's expert witness, the court offers the board the option of (1) restoring the original slough and paying a $3,000 fine or (2) filling the basin to a depth of two feet, adding 20,000 square feet to the basin, planting the area with seagrasses and mangroves, and paying a $15,000 fine. The board has 10 days to make its choice.

Counsel are listed at 12 ELR 20391.

[12 ELR 20948]

ATKINS, J.:

Order on Mitigation Plan

THIS CAUSE came before the Court on April 13, 1982 for a hearing on the mitigation project to be performed by the defendants, Board of Trustees of [Florida] Keys Community College ("Board"). The background of this case is set forth in this Court's Memorandum Opinion (filed September 3, 1981 [12 ELR 20391]), and need not be repeated here. This Court, having found that the Board violated the River and Harbor Act, 33 U.S.C. § 403, and the Clean Water Act, 33 U.S.C. §§ 1311, 1344, by filling in a shallow-water slough, offered the Board the option of (1) restoring the original slough and paying a $3,000 fine or (2) performing a less-costly mitigation project elsewhere on the campus and paying a $15,000 fine.

The Board proposed a mitigation project consisting largely of filling and planting mangroves in an L-shaped boat basin. The Government submitted its own plan for the basin, requiring among other things the removal of the sewage treatment plant adjacent to the basin and extensive planting of sea-grasses. Unfortunately, the Government's plan would be more expensive than restoring the original slough. This expense is due to the cost of relocating the sewage plant.

The Court set this hearing to determine the best possible mitigation project. The Court specifically asked the parties to address the following questions:

1) Whether the discharge from the sewage plant could be used beneficially as part of a mitigation project?

2) What would be the best possible mitigation plan for the L-shaped basin which would not require removal of the sewage plant?

At the hearing Dr. Arnold Banner, the Government's expert, testified that the sewage plant discharge could not be used beneficially in an area as small as the L-shaped basin. He further testified that merely planting seagrasses in the L-shaped basin, while beneficial, would be inadequate to offset the destruction of the original slough. Dr. Banner then offered a quantification of the [12 ELR 20949] environmental benefit from various possible mitigation projects. He calculated the benefit by multiplying the area to be covered by each project by the "value" of the area, "value" being the sum of Banner's rating of the area's utility for each of four key species. On that basis, Banner listed the following three potential mitigation projects in order of preference:

a) restore the original slough;

b) reduce 38,700 square feet of presently unoccupied fill pads to a depth of two feet (below sea level);

c) fill the L-shaped basin to a uniform depath of two feet and reduce 32,000 square feet of an adjacent parking area to the same depth, then plant the entire (enlarged) basin with seagrasses.

Defendant offered various and ingenious ideas for enhancing the L-shaped basin, but none of its proposals would even approach the degree of enhancement needed to offset the damage caused by filling the original slough. The Board continues to have the option of restoring the original slough. The Court must, therefore, fashion an alternative plan from the other proposals presented.

The Court adheres to the Board's preference for a mitigation project in the L-shaped basin. The parties agree that any mitigation in the basin will require removal of the houseboat presently docked there, and filling in the deepwater parts of the basin to a depth of two feet. They disagree over the total area required for a satisfactory mitigation project. I agree with the Government that the present area of the basin¹ is too small to compensate for the damage done to the slough. On the other hand, Dr. Banner's proposal that 32,000 square feet be added to the basin seems excessive. If the Board elects to perform alternative mitigation, it must pay a greater fine. Therefore, I see no need to require it to match fully the environmental loss caused by filling the original slough. I find that an addition of 20,000 square feet to the basin, by lowering adjacent parking areas to a depth of two feet, would be adequate.

Accordingly, it is ORDERED AND ADJUDGED that defendant Board of Trustees shall be allowed to perform a mitigation project in the L-shaped basin as follows:

i) remove the houseboat;

ii) remove debris, if any, from the basin and surrounding areas;

iii) fill the deepwater portions of the basin to achieve a uniform depth of two feet (below sea level);

iv) add 20,000 square feet to the basin by reducing that much of the adjacent parking area to a depth of two feet;

v) plant the entire enlarged basin with seagrasses, as proposed by Dr. Banner;

vi) plant mangroves along the outer edge of the peninsula on which the sewage plant stands.

If the Board elects this project it must also pay a $15,000 fine. The Board shall notify the Court (and the Government) of its choice of mitigation (i.e. the above-described project or restoring the original slough) within ten days of the filing date of this Order.

1. The total area of the basin is approximately 19,125 square feet; the original slough was about 22,000 square feet. Most of the basin, however (about 12,000 square feet), is already near an optimum environmental value and could not be substantially enhanced.