United States v. Golden Acres, Inc.

No. 76-0023-CIV-4 (E.D.N.C. January 12, 1977)

ELR Digest

The court holds that unpermitted fill activity in a marsh wetlands violates § 301(a) of the Federal Water Pollution Control Act (FWPCA), and orders defendant to pay a civil penalty and to restore a portion of the filled area. The court declines to rule on whether defendant's actions violated the Rivers and Harbors Act of 1899, and instead rules that the fill activities were a discharge of pollutants in violation of § 301(a) of the FWPCA. The court holds that a connection between the activity and navigation is not necessary for a § 301(a) violation and that the marsh wetlands at issue here are navigable waters as that term is defined in § 502(7) of the Act. The court notes that restoration is the most efficacious remedy for § 301(a) violations and that defendant has agreed to restore two of three areas. This remedy is inappropriate in one fill area, however, because defendant has sold the land to several bona fide purchasers who took for value and without knowledge of the violations, and who have not been joined as parties defendant. The court therefore imposes a civil penalty equal to the gain defendant might have realized as a result of this portion of unauthorized work reduced by the amount defendant will expend in voluntarily restoring the other two areas.

The full text of this opinion is available from ELR (14 pp. $2.25, ELR Order No. C-1298).

Counsel for Plaintiff
William Webb, U.S. Attorney
P.O. Box 26897, Raleigh NC 27611
(919) 755-4530

Counsel for Defendant
Jimmie C. Proctor
Brock, Fay & Proctor
P.O. Box 219, Trenton NC 28585
(919) 448-3911

Larkins, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]