United States v. M.C.C. of Florida, Inc.

No. 81-2373-CIV-EBD (S.D. Fla. December 17, 1982)

The court rules that dredging and filling of Niles Channel, Florida by the propeller systems of defendants' tugboats without Army Corps of Engineers permits violated § 10 of the Rivers and Harbors Act and § 404 of the Federal Water Pollution Control Act (FWPCA). After obtaining the necessary Corps permits for construction of a conventional girder design replacement bridge over Niles Channel, defendants, without the knowledge of Corps or state environmental officials, changed to a segmental construction design, which required the barging of bridge segments through Florida Bay to the construction site. The court rules that while barging through Niles Channel defendants engaged in dredging without a permit in violation of § 10 of the Rivers and Harbors Act. Such dredging occurred when the propeller systems of the tugboats passed over shallow bottoms, uprooting sea grasses and filling the adjacent areas with sediment. That defendants mistakenly relied upon the Florida Department of Transportation to obtain the permits does not excuse the violation. The court, after holding that tugboats are point sources and that dredge spoil, sand, and biological materials are pollutants within the meaning of the FWPCA, rules that the unpermitted activities violated § 404 of the FWPCA. The court also rules that defendants' unpermitted activities in state waters violated § 403.161 of the Florida Statutes. The court reserves ruling on restoration and civil penalties pending study of the restoration alternatives.

Counsel for Plaintiff
Michael J. Mitchell, Ass't U.S. Attorney
155 S. Miami Ave., Miami FL 33130
(305) 350-4471

Counsel for Defendants
James T. Hendrick
Albury, Morgan & Hendrick
P.O. Box 1117, Key West FL 33040
(305) 296-5676

[13 ELR 20305]

Davis, J.:

THIS MATTER has come before the Court for trial without a jury. Based upon the admissible evidence adduced at trial and the arguments of counsel, the Court does make and enter the following Findings of Fact and Conclusions of Law.

Findings of Fact

1). This is a civil action by the United States of America under the Rivers and Harbors Act, 33 U.S.C. § 403, et seq., and the Clean Water Act, 33 U.S.C. § 1311, et seq., seeking restoration and civil penalties.

2). The Plaintiff/Intervenor, the State of Florida Department of Environmental Regulation, [D.E.R.], Statutes and also seeks restoration. The D.E.R. has withdrawn their claim for civil penalties.

3). A counterclaim has been brought against the United States under 28 U.S.C. § 2412 for attorneys' fees, experts' fees and expenses. Similarly, a counterclaim has been brought against the D.E.R. for general damages.

4). The Defendant, Michael Construction, is a Tennessee corporation and the parent corporation of M.C.C. of Florida, Inc.

5). The Defendant, M.C.C. of Florida, Inc., is a Florida corporation whose principal business involves bridge construction.

6). Niles Channel is a navigable waterway connecting the Bay of Florida with the Atlantic Ocean.

7). The Niles Channel Bridge supports U.S. Highway 1 over Niles Channel. This bridge was one of thirty-seven bridges to be replaced as part of the Florida Keys Bridge Replacement Program.

8). M.C.C. of Florida is the prime contracter for the construction of a replacement bridge over Niles Channel.

9). In competitive bidding, M.C.C. of Florida, Inc., was awarded the contract for construction of the Niles Channel Bridge. The Florida Department of Transportation [D.O.T.] had requested bids for the alternate methods of construction: conventional girder and segmentalconstruction. M.C.C. of Florida's bid for segmental construction was the lowest overall bid.

10). In late December, 1980, the D.O.T. entered into a contract with M.C.C. of Florida for construction of the Niles Channel Bridge. The contract called for segmental construction.

11). The D.O.T. has assumed the responsibility for acquiring permits from all concerned state and federal agencies for construction of the Niles Channel Bridge, as well as the other thirty-six bridges which were part of the replacement program.

12). In 1975, prior to the construction of any of the thirty-seven bridges, a Draft Environmental Impact Statement was prepared jointly by the Federal Highway Administration and the Florida D.O.T.

13). The Environmental Impact Statement noted that the bridge replacement project would cause damage to marine vegetation and to marine life, however, the damage would be temporary and the areas sustaining the damage were not considered unique. It further noted that "while U.S. 1 passes by and provides access to the Great White Heron National Wildlife Refuge and the National Key Deer Refuge along with several lesser sanctuaries, no area of these preserves or species habitat within these preserves is affected by the construction areas of the bridge replacement project."

14). After consideration and opportunity for input by all concerned agencies including the D.E.R. and the Department of Army, Corps of Engineers [Corps], a negative declaration was issued with respect to the Environmental Impact Statement.

15). The D.O.T., consistent with predictions set forth in the Negative Declaration, altered the design of the Niles Channel Bridge raising it from the original proposal of 15 feet to a height of 40 feet. The Corps and the D.E.R. were aware of this height change and did not challenge it.

16). The decision to employ a segmental construction method rather than conventional girder design was not finally made until the contract was awarded in 1980.

17). When construction permits for the Niles Channel Bridge were issued by the Corps and the D.E.R. in 1978, a conventional design was specified in the applications. This method contemplated materials to be trucked in on overland roads.

18). Neither the Corps nor the D.E.R. learned of the change to segmental construction until 1981 when actual construction had begun. No modification was ever made in the applications or the permits to reflect the change in construction methods.

19). Segmental construction required the barging of bridge segments. The segments needed for this method of construction [13 ELR 20306] were too heavy and cumbersome to be brought to the bridge site on an overland route.

20). The Defendants had a casting yard on Conch Key where they formed the bridge segments used on the Niles Channel Bridge. These segments, along with other construction materials, were loaded on barges and taken from the casting yard in a southwesterly direction through Florida Bay down to the Niles Channel construction site.

21). The Defendant used two tugs for the transportation of bridge segments from Conch Key to the bridge site: the "Lil' Pal" and the "Annie L II." Michael Construction Company is the record title holder of both tugs. M.C.C. of Florida leased these tugboats from Michael Construction Company and operated them in their work on the Keys bridges.

22). The route the Defendants' tugboats travelled from the casting yard to the bridge site encompassed the three areas which are the subject of this litigation. These areas have been designated in the following manner: Site #1 — this site is located north of U.S. Highway 1 in Niles Channel approximately halfway between Toptree Hammock Key and Big Torch Key; Site #2 — this site is located northwest of site #1 in Niles Channel adjacent to Raccoon Key; and Site #3 — this site is located between Cudjoe Key and Big Spanish Key in a shallow section of Big Spanish Channel.

23). Site #1 is approximately 4 miles from the bridge. Site #2 is approximately 8 miles from the bridge. Site #3 is approximately 20 miles from the bridge.

24). Site #1 is located within the boundaries of the National Key Deer Refuge. Site #2 and Site #3 are located within the boundaries of both the National Key Deer Refuge and the Great White Heron National Wildlife Refuge.

25). The bottom communities at the subject sites are characterized by lush seagrass vegetation. Species present include: turtle grass (Thalasia); manatee grass (Syringodium) and Cuban shoalweed (Haledule), turtle grass being the most prevalent. The seagrass beds play an essential role in the areas unique eco-system. These beds form the critical base link in the aquatic food chain and serve as a habitat and/or spawning ground for such marine species as lobster, shrimp, stone crab, snapper and grouper. The disappearance of any sizeable area of the seagrass beds causes significant disruptions to the eco-system of this shallow water marine community.

26). The construction permits issued by the Corps and the D.E.R. for the Niles Channel Bridges covered only areas within the D.O.T. right of way.

27). Niles Channel, the location of Site #1 and Site #2, is a shallow tidally influenced body of water running between Florida Bay and the Atlantic Ocean. Water depths through the Channel range from 0' mean low water to -23' mean low water. The bulk of the area is heavily vegetated by marine grasses and algae beds. Two deep areas exist in Niles Channel: one, a narrow channel running from Florida Bay through Cudjoe Channel to the north and two, an isolated trench immediately to the northeast of Treetop Hammock Key.

28). Big Spanish Channel is a navigable tidal waterbody running in a north-south direction between Florida Bay and the Florida Straits. The channel is vegetated throughout with marine seagrass. Controlling depths through the navigable portions of the Channel are -5' to -6' mean low water.

29). During the spring of 1981, the Corps and the D.E.R. first became aware of the Defendants barge activities in the subject areas. Efforts were made to work out a solution that would be acceptable to all concerned parties. These efforts were unsuccessful.

30). On August 7, 1981, the Defendants were served with a Cease and Desist Order by the Corps prohibiting the Defendants' tugs from engaging in further dredge and fill activities in the subject areas.

31). On September 4, 1981, the Defendants and D.O.T. officials met with the representatives of the Corps and the D.E.R. in an attempt to formulate an agreement concerning tug and barge movements in Niles Channel. The meeting concluded without an agreement.

32). On October 7, 1982, D.E.R. and Corps personnel observed repeated movements of the Defendants' tug "Annie L II" through the area designated as Site #1. Some of these movements were for purposes other than the transportation of heavy materials and equipment. The functions performed during these movements could have been accomplished through the use of smaller work boats which would not cause bottom scarring. The Defendants were also given a copy of the Corps previously issued Cease and Desist Order at this time.

33). During September and October of 1981, the Defendants continued tug and barge movements in the subject area and this action was brought. On November 29, 1981, an injunction hearing was held concerning the Defendants' conduct.

34). Following the hearing, the Court denied the government's motion for a preliminary injunction, however, the Defendants were instructed to confine their tugboat trips to high tide and to alert Corps personnel regarding the time of their movements through the subject areas.

35). On some, but not all occasions, the Defendants contacted Corps personnel regarding the movements of their tugs and barges through Niles Channel.

36). Following the November preliminary injunction hearing the Defendants restricted to a large extent, the use of the larger tug "Lil' Pal" in Niles Channel.

37). The Defendants made some effort to conduct their tug and barge movements in Niles Channel during high tide periods, although they did not do so in all instances.

38). The Defendants' tugs made at least 112 movements through Niles Channel in connection with the bridge project. Many of these movements were at night or in the poor lighting conditions of dawn or dusk.

39). Personnel from the Corps and the D.E.R. have personally observed channel dredging and filling by the propeller systems of the Defendants' tugboats in the areas designated as Site #1 and Site #2.

40). The on-site observations by D.E.R. and Corps personnel detail Channel dredging by the propeller systems of the Defendants' tugs of depths of up to two feet. Also observed on these occasions was the accompanying uprooting and destruction of sea grass, as well as the deposition of bottom sediment on adjacent sea grass beds.

41). Log records and on-site observations by the Corps personnel establish several groundings by the Defendants' tugs and barges in the subject areas.

42). The Defendants' tug activities have, on at least three occasions, caused turbidity over an extensive area well in excess of fifty Jackson Units above the natural functioning of the marine eco-system.

43). The damage to the marine vegetation and the bottom sediments in Site #1 is devastating. Acres formerly lush with vegetation have been completely denuded. The bottom scarring at Site #2, although less severe, is still extensive and significant.

44). There is insufficient evidence to establish that the Defendants engaged in any dredge and fill activities in the area designated as Site #3.

45). There were alternative methods of transporting bridge segments which would have avoided any impact on the subject areas, the least costly of which would have been the use of shallow-draft tugboats. The Defendants considered and rejected these alternatives.

46). Neither the Corps nor the D.E.R. engaged in acts or tactics of harassment in their investigation and enforcement efforts with respect to the Defendants activities.

Conclusions of Law

1). This Court has subject matter jurisdiction over the issues raised in the pleadings of this law suit pursuant to 28 U.S.C. § 1345 and 33 U.S.C. § 403, 406, 1311 and 1319.

2). The Complaint charges the Defendants with violations of the Rivers and Harbors Act. Section 10 of this Act states in part:

. . . it shall be unlawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, arbor, canal, lake, harbors of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by [13 ELR 20307] the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same . . . .

33 U.S.C. § 403

3). "Navigable waters" are those waters subject to the ebb and flow of the tide and/or are presently used or have been used in the past, or are susceptible for use to transport interstate or foreign commerce. 33 C.F.R. § 329.4.

4). The areas which are the subject of this litigation are "navigable waters" within the meaning of the Rivers and Harbors Act.

5). Section 10 of the Rivers and Harbors Act has been broadly construed in determining if violations have occurred. U.S. v. Republic Steel, 362 U.S. 482 (1960); See U.S. v. Moretti, 526 F.2d 1306 (5th Cir. 1976).

6). The Defendants have committed violations of Section 10 of the Rivers and Harbors Act. These violations occurred when the propeller systems of the Defendants' tugboats made contact with the sea bottoms uprooting sea grasses and causing the adjacent areas to become filled with dredged materials. Such excavation and fill activities by boat propellers, of the extent and devastation which occurred in this instance, constitutes channel dredging.

7). The fact that the Defendants mistakenly placed reliance on the D.O.T. to obtain the necessary permits for them does not excuse the violations. U.S. v. Board of Trustees of Florida Keys Community College, 531 F. Supp. 267 [12 ELR 20391] (S.D. Fla. 1981).

8). The awareness of the change in bridge height on the part of the Corps and the D.E.R. prior to the commencement of construction did not constitute a waiver of the permit requirements. U.S. v. Board of Trustees of Florida Keys Community College, supra.

9). The Clean Water Act, 33 U.S.C. § 1311, et seq. sets up a comprehensive regulatory scheme which prohibits, with certain narrow and well defined exceptions, the discharge of pollutants into the navigable waters of the United States.

10).The term "discharge of a pollutant" is defined in 33 U.S.C. § 1362(12) as follows:

The term "discharge of a pollutant" and the term "discharge of pollutants" each means (A) any addition of any pollutant to navigable waters from any point source. (B) any addition of any pollutant to the waters on the contiguous zone or the ocean from any point source other than a vessel or other floating craft.

11). The term "point source" is defined in 33 U.S.C. § 1362(14) as follows:

The term "point source" means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture.

12). The term "point source" expressly includes vessels and has been found to encompass bulldozers, dump trucks, land-clearing equipment and ditch excavation equipment. See U.S. v. Weisman, 489 F. Supp. 1331 [10 ELR 20698] (M.D. Fla. 1980).

13). The Defendants' tugboats are point sources within the meaning of the Clean Water Act.

14). Dredge spoil, sand and biological materials are listed as "pollutants" in Section 1362(6) of the Clean Water Act. See Weiszmann v. District Engineer, U.S. Army Corps of Engineers, 526 F.2d 1302 [6 ELR 20219] (5th Cir. 1976).

15). The Defendants have violated the Clean Water Act. These violations occurred when the propeller systems of the Defendants' tugboats dredged channels in the sea bottom of the areas designted as Site #1 and Site #2. This propeller dredging caused dredge materials, sand and biological materials to be deposited on the adjacent seagrass beds. The extent of the harm to the impacted environment caused by these violations is far too severe and significant to be considered de minimus.

16). Niles Channel and the subject areas of this action are "waters of the State" as that term is defined in Section 403.031(3) of the Florida Statutes.

17). Dredging and filling in waters of the State without a permit constitutes violation of Section 403.161(1)(b).

18). Dredging, as defined in Rule 17-4.02(12) of the Florida Administrative Code is "excavation, by any means." The excavation of bottom sediments by the propeller systems of the Defendants' tugs constitutes dredging within the meaning of this Rule.

19). Because no permit had been obtained for dredging activities outside the D.O.T. right of way, the Defendants' propeller excavations in Niles Channel were in violation of Section 403.161(1)(b).

20). Pollution is defined in Section 403.031(2) of the Florida Statutes in the following manner:

Pollution is the presence in the outdoor atmosphere or waters of the state of any substances, contaminants, noise, or man-made or man-induced alteration of the chemical, physical, biological, or radiological integrity of air or water in quantities or at levels which are or may be potentially harmful or injurious to human health or welfare, animal or plant life, or property, or unreasonably interfere with the enjoyment of life or property, including outdoor recreation.

21). The Defendants' dredging activities has resulted in the destruction of lush seagrass beds. This destruction has taken two forms: uprooting through direct contact with the propeller systems of the Defendants' tugboats; and habitat displacement as a result of the deposition of dredge materials on adjacent beds.

22). The destruction of the seagrass beds has adversely altered the physical and biological integrity of the waters of Niles Channel. This has had a harmful and destructive effects on the marine communities which live and breed in this area.

23). The Defendants' dredging activities have caused pollution in violation of Section 403.161(1)(a) of the Florida Statute.

24). Turbidity in excess of fifty Jackson Units above the natural background is pollution above the acceptable level as set forth in Rule 17-3.061(2)(b) of the Florida Administrative Code. It is a violation of Section 403.161(1)(a) and (b) of the Florida Statutes to cause turbidity in excess of this standard. The Defendants, on at least three occasions, have violated this statute.

25). The Corps and the D.E.R. acted reasonably in their efforts to prevent environmentally harmful violations within the respective spheres of thier jurisdiction. There was no harassment by either agency as to these Defendants.

26). The Counter-plaintiffs have failed to establish any damages which they have suffered as a result of any act or position taken by the D.E.R.

27). The Counter-plaintiffs have not prevailed on either of their counterclaims.

The Court reserves ruling on the issues of restoration and civil penalties in order to afford the parties sufficient opportunity to study the restoration alternatives. A separate hearing on these issues will be set by future order.