United States v. Tilton

No. 81-27-Civ.-J-WC (M.D. Fla. January 7, 1982)

The court rules that the Corps of Engineers has jurisdiction under § 404 of the Federal Water Pollution Control Act over defendants' wetlands property. Although the wetlands is separated from the St. Johns River by a road, the court rules that the property constitutes "adjacent wetlands" within the meaning of the applicable regulations. The Corps' jurisdiction over "wetlands" includes jurisdiction over "adjacent wetlands." The court also finds sufficient evidence to indicate that there was a discharge of fill material into the adjacent wetlands. The court enjoins further discharge of fill material without a permit from the Corps, but finds insufficient evidence to either require defendants to restore the property or to impose civil penalties.

Counsel for Plaintiff
Steve Calvarese
Corps of Engineers, 400 W. Bay St., Jacksonville FL 32202
(904) 791-2234

Robert S. Yerkes, Ass't U.S. Attorney
P.O. Box 600, Jacksonville FL 32201
(904) 791-2682

Counsel for Defendants
C. Ray Greene Jr.
Greene & Greene
2500 Gulf Life Tower, Jacksonville FL 32207
(904) 396-5527

Michael T. Breen
P.O. Box 45165, Atlanta GA 20320
(404) 458-7875

[12 ELR 21102]

Castagna, J.:

Opinion

The Court has considered the testimony, exhibits and legal arguments of the parties. This cause originally came before the Court on the defendant Tiltons' objections to the entry of a consent judgment between the plaintiff and the defendant I.T.T. Rayonier. The Court consolidated the hearing on defendant Tiltons' objections with a trial on the merits.

The defendants Tilton contend that the Army Corps of Engineers does not have jurisdiction over the Tilton's property. However, the regulations under the Clean Water Act, 33 U.S.C. § 1344, provide otherwise.

33 C.F.R. § 323 concerns the power of the Army Corps of Engineers to permit the discharge of dredge or fill material into the waters of the United States, which by definition include adjacent wetlands. 33 C.F.R. § 323.2(a)(4). It is undisputed that the defendant Tiltons never applied for a permit with the Army Corps of Engineers. 33 C.F.R. § 323.2(c) defines wetlands as:

[t]hose areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstancesdo support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas.

There is no genuine dispute between the parties that the fill area is "wetlands." The government biologist testified that flora typical of wetlands grew in the fill area, the defendants Tilton, in their Proposed Final Judgment, refer to the area as a "freshwater swamp . . . periodically inundated by rain water." The Court, based on the testimony and the maps and photographs submitted by the parties, finds that the area is "wetlands" as defined by 33 C.F.R. § 323.2(c).

The defendants Tilton, however, contend that the fill area is not subject to the jurisdiction of either the Army Corps of Engineers [12 ELR 21103] or this Court because the swamp is separated from the St. Johns River by a road or berm and there is no surface connection between the swamp and the St. Johns River. Such a lack of connection is insufficient to defeat jurisdiction under 33 C.F.R. § 323.2(d), which provides:

The term "adjacent" means bordering, contiguous, or neighboring. Wetlands separated from other waters of the United States by namade dikes or barriers, natural river berms, beach dunes and the like are "adjacent wetlands."

The Court therefore finds that the road or berm separating the fill area does not preclude exercise of the Army Corps of Engineers' jurisdiction over "adjacent wetlands." The Court further finds sufficient evidence to indicate that there was discharge of fill material into the adjacent wetlands.

Upon a finding of jurisdiction and proscribed discharge of fill material into adjacent wetlands, this Court is empowered to provide a restoration remedy. In the present case, however, the government adduced no convincing testimony concerning the extent of the Tiltons' filling on the less than two acre area as contrasted to the discharge of fill material into these adjacent wetlands accomplished prior to 1975 by the defendants' predecessors in title. The Court therefore finds the most equitable solution to be an injunction against further discharge of fill material on the Tiltons' property in Putnam County, Florida, adjacent to the St. Johns River without a permit from the Army Corps of Engineers. As to the fine requested by the plaintiffs, the Court finds that the government did not adduce sufficient testimony to prove that the defendants Tilton should be subject to the penalty provision of 33 U.S.C. § 1319(d). Final Judgment will be entered accordingly and the consent judgment between plaintiff and defendant I.T.T. Rayonier will be approved.