United States v. Lambert

No. 81-255-Orl-Civ-R (M.D. Fla. June 3, 1981)

The court refuses to preliminarily enjoin defendants from engaging in dredge and fill activities without a permit, allegedly in violation of §§ 301 and 404 of the Federal Water Pollution Control Act (FWPCA). The court first rules that it is likely that plaintiff will prevail on the merits of some of its claims. There is a reasonable probability that plaintiff will be able to prove that defendants' property contains wetlands, and that the wetlands are adjacent to the Banana River, a navigable body of water as defined by Corps of Engineers regulations. While the court determines that defendants' dredging of the central wetland has not resulted in the discharge of a pollutant within the meaning of § 301 of the FWPCA, it does find that the evidence establishes violations of § 301(a). Defendants placed a fill mat on the wetlands, dripped spoil on wetlands adjacent to the dredged sites, and constructed fill roads on the wetlands without a § 404 permit. However, plaintiff has failed to establish that these activities will cause irreparable injury in the absence of a preliminary injunction. Therefore, the court denies its motion for such relief.

Counsel for Plaintiff
Elizabeth A. Jenkins, Ass't U.S. Attorney
501 Fed. Bldg., 80 N. Hughey Ave., Orlando FL 32801
(305) 420-6341

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

Michael A. Sterlacci
Jenkins, Nystrom & Sterlacci
2033 M St. NW, Washington DC 20036
(202) 293-2505

[13 ELR 20045]

Reed, J.:

Memorandum of Decision

Based upon the evidence presented in connection with the Government's application for a preliminary injunction, the court makes the findings of fact and conclusions of law which follow.The defendants William Lambert and Lucille Lambert, his wife, own a 37-acre tract of land in Brevard County, Florida, which is shown on a topographical survey in evidence as defendants' exhibit 6 and is photographically represented in Government's exhibit 8. The land was acquired by the Lamberts in two parcels, the north half in 1977 and the south half in 1978.

At the time this action was filed, the defendants had been depositing scallop shells at the rate of approximately 4,000,000 pounds per week on the subject property. Defendants thereafter caused the shells to be covered with sand dredged from borrow pits on the property. The shells are a by-product of a scallop processing plant operated by the defendant William Lambert on a site several miles from the subject property. Personnel of the Corps of Engineers perceived the defendants' activities as violations of the provisions of the Federal Water Pollution Control Act found in 33 U.S.C.A. § 1311(a) and on 2 March 1981 sent a cease and desist order to the defendant William Lambert (Gx 3).¹ The present action was thereafter filed in response to continued activities by the defendants on the subject property.

Arnold Banner, an environmental specialist with the United States Fish and Wildlife Service, testified that he made four onsite inspections of the subject property. Based on those visits, a study of an aerial photograph of the area (Gx 6), a U.S. Geological Survey published by the Department of the Interior (Gx 5), and a written soil survey, Dr. Banner testified that he identified on the defendants' property three "wetlands" as defined by the regulations adopted by the Secretary of the Army for purposes of administering a part of the Act's permit program. See 33 C.F.R. § 323.2. Dr. Banner prepared Government's exhibit 8 as pictorial representation of the wetlands which he identified on the subject property. He testified that on the eastern wetland he found a prevalence of sea daisy, cord grass and leather fern; on the central wetland he found sea daisy, black needlerush and glasswort, and on the western wetland he found sea daisy, glasswort and sea purslane. In addition, Dr. Banner testified that he found an algal mat under some of the sea daisies and mangroves close to the south and west lines of the subject property. Dr. Banner testified that he found the undisturbed top soil to be moist peat. Dr. Banner's testimony with respect to the plant species was generally corroborated by that of Algis Taruski, a biologist employed by the Army Engineers. Dr. Banner further testified that he found in the wetlands twenty-two species of plants tolerant to saturated soil and no upland species.

Dr. Banner's testimony was contradicted by the defendants' expert — George W. Cornwell. Dr. Cornwell testified that he thought the property did not contain "true wetlands" although he conceded that a portion of the central wetland designated by Dr. Banner "might" be a wetland and admitted to finding an algal mat on the southern part of the property and traces of such a mat on the east side of the western wetland designated by Dr. Banner. Dr. Cornwell testified that the property was not subject to tidal flooding from the Banana River, except in a hurricane, and that the salinity of the water on the defendants' property was the result of underground salt water intrusion. Dr. Banner on the other hand expressed the opinion that the salinity of the water on defendant's property was the result of tidal flooding from the Banana River. Based on the testimony of Drs. Banner and Taruski, the court finds a reasonable probability exists that the Government will be able to prove at the trial on the merits that the defendants' property contains three wetlands as defined by the regulation mentioned above and as depicted on Government exhibit 8.

The wetlands in question vary from approximately 100 feet to 1,229 feet in distance from the shoreline of the Banana River. The wetlands on the subject property drain to the south and through a culvert adjacent to the southwest corner of the property. According to the testimony of Dr. Banner, vegetation produced on the wetlands flowed through the culvert and into a tributary of the Banana River which lies south of the defendants' property and is clearly pictured in Government's exhibit 9 — a photograph taken on 22 May 1981. This vegetation, Dr. Banner testified, provides a food source to fish in the Banana River. Based on the foregoing evidence, the court finds that the defendants' wetlands are "adjacent"² to the Banana River to the east and to the tributary of the Banana River which lies to the south of the subject property. The court also finds from the evidence, including Government's exhibit 4, that the Banana River is a navigable body of water which supports recreational boating and fishing.Additionally, the court finds that the defendant William Lambert has without a permit: (a) caused a fill road of shell and sand to be built across the northern and southern extremes of the wetlands; (b) excavated a large area in the central wetland, and (c) laid shell fill in small areas of all three wetlands. The excavation has been accomplished by a dredge line which in operation spilled back some amount of water and spoil into the pit from which it was immediately removed (see Gx 14). This court, however, does not consider such bank-spill to constitute the discharge of a pollutant for purposes of Section 1311 of Title 33, U.S.C.A., when the dredged spoil simply falls back into the area from which it has just been taken. Such an event cannot reasonably be considered to be the addition of a pollutant. See 33 U.S.C.A. § 1362(12). The court finds that this conclusion is not precluded by the opinion in Weiszmann v. Dist. Eng., U.S. Army Corps of Engineers, 526 F.2d 1302 [6 ELR [13 ELR 20046] 20219] (CA5, 1976). In the Weiszmann case, the facts involved the dredging of one canal which apparently caused sediment to enter another separate canal. In the present case, the dredging of the central wetland has not caused pollutants to enter the Banana River or its tributary. On the contrary, its effect is to diminish the movement of a "pollutant" in the form of biological materials to the Banana River.

If this court is correct in its conclusion that the back-spill described above is not the discharge of a pollutant for purposes of 33 U.S.C.A. § 1311(a), the evidence before the court shows by a preponderance only the following violations of § 1311(a): (1) the placing of a fill mat on the wetlands; (2) the dripping of spoil on wetlands adjacent to the dredged sites; and (3) the construction of fill roads on the north and south ends of the wetlands. From the evidence, it appears likely that the Govenrment will prevail on the merits of this litigation, but the evidence before the court does not justify a finding by the court that the violations mentioned above, even if continued during the pendency of this litigation, cannot be remedied by a permanent injunction or a civil fine, or both, pursuant to 33 U.S.C.A. § 1319, after a full hearing on the merits. For this reason, the Government has not established such irreparable harm as would justify the imposition of a preliminary injunction. See Canal Authority of State of Florida v. Callaway, 489 F.2d 567, 573 [4 ELR 20164] (CA5, 1974). For the foregoing reason, the Government's application for preliminary injunction will be denied.

1. The abbreviation "Gx' is used herein to refer to a Government exhibit received in evidence.

2. As that term is defined in the Secretary of the Army's Regulation published in 33 C.F.R. § 323.2