13 ELR 20532 | Environmental Law Reporter | copyright © 1983 | All rights reserved


United States v. Conrad

No. 80-877-Civ-T-GC (M.D. Fla. March 22, 1983)

The court, having found that defendants filled wetlands without a permit in violation of § 404 of the Federal Water Pollution Control Act (FWPCA), now orders defendants to restore 23 acres of wetlands filled to build condominiums and pay a civil penalty of $100,000. The court concludes that the north percolating pond was an "adjacent wetland," not an "isolated wetland," because it was separated from a tidal canal by a berm that, at most, was 10 feet wide. Therefore, regardless of the legality of completing the berm without a permit, defendants' subsequent filling of the pond violated Army Corps of Engineers regulations. The court also rules that the berming of the pond constituted the unpermitted discharge of materials into navigable waters in violation of Corps regulations. In addition, the court finds that the berming of the western portion of the pond violated Corps regulations because it also constituted the unpermitted discharge into navigable waters of the United States.

The court rejects defendants' argument that, because the Corps allegedly misrepresented the scope of its jurisdiction, the government was estopped from bringing the case. The court rules that the act of granting a permit under the FWPCA is an exercise of the government's sovereign power and that the government cannot, as a matter of law, be estopped by the conduct of its agent. Finally, the court orders defendants to restore the filled wetland property and either to pay a civil penalty of $100,000 or deed a 200-acre area to Pasco County, Florida.

Counsel for Plaintiffs
David E. Dearing
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5777

Stephen C. Calvarese
Office of District Counsel
Army Corps of Eng'rs, P.O. Box 4970, Jacksonville FL 32201
(904) 791-1164

Counsel for Defendants
William B. Taylor IV, Claude H. Tison
MacFarlane, Ferguson, Allison & Kelly
P.O. Box 1531, Tampa FL 33601
(813) 223-2411

[13 ELR 20532]

Carr, J.:

Memorandum of Decision

At the end of a five day trial in this case commencing on October 15, 1981, the Court orally entered a Memorandum of Decision pursuant to Rule 52 FED. R. CIV. P. The Court has heard objections to its oral memorandum and will now enter a final decision. Before so doing, the Court notes that its transcribed oral findings will continue to have force and effect in the case. This Memorandum of Decision will only supplement and clarify the Court's earlier findings. Specific findings entered by the Court in its earlier decision which are not inconsistent with this Order are still in effect.

The Court will first clarify its holding regarding the berming and subsequent filling of the north percolating pond. The Court first notes that it is undisputed that the north pond was separated from a tidal canal by a berm which at most was ten feet wide. Thus, even when the berm was completed, the Court concludes that the pond was an adjacent wetland as defined by 33 C.F.R. §§ 323(a)(2); 323(b); 323(c). See also Leslie Salt Co. v. Froehlke, 578 F.2d 742, 756 n. 16 [8 ELR 20480] (9th Cir. 1978). Contrary to the defendant's contentions, the pond was not an "isolated wetland" as defined by the miscellaneous provisions of the Corps regulations. 33 C.F.R. § 323.5.1 Thus, regardless of whether or not the berm could have been legally completed without a permit, the defendant's subsequent filling of the pond was illegal.

The defendant has extensively argued the legality of the berming of the north pond. Apparently, the defendant believes that any conclusion regarding the legality of the permitless construction of the berm will automatically apply to the filling of the pond. However, the berming of the pond and its filling four years later are two separate acts. As such, the legality of the pond's filling must be judged separately from the legality of the pond's berming. The Corp's phase-in regulations, 33 C.F.R. § 323.4 et [13 ELR 20533] seq., have no applicability to the filling of the pond. These regulations had long become inoperative when the pond was filled. Thus, notwithstanding the validity or non-validity of the defendant's berming of the pond, he is guilty of violating 33 C.F.R. § 323.3(a).

The Court will next address the question of the legality of the defendant's berming of the pond. Air photographs of the berm taken in July, 1975 indicate that there was a gap in the northwest portion of the berm. This gap allowed waters of the pond to freely intermingle with the waters of the adjacent wetlands and tidal canal. The gap was closed sometime after October 21, 1975 and before November 15, 1975.See Government's exhibit #7 and defendant's exhibit #3. In its oral decision entered on October 15, 1981, the Court did not make a finding regarding the origin of the gap. Specifically, the Court did not state whether the gap was the result of the berm's noncompletion or whether it was caused by a breach in the completed berm. The Court will now correct this oversight.

Accordingly, based upon the evidence submitted at trial and the lack of any evidence from the plaintiff that the berm was ever complete before July 25, 1975, the Court hereby finds that the gap in the berm was caused by its noncompletion and not by a breach of an existing berm.

The Court further finds that prior to the defendant's activities, the western portion of the pond contained navigable water of the United States as defined in 33 C.F.R. § 329.2 This finding is based upon the testimony of Dr. Banner and Dr. Krycinskis and Government exhibits #9, 6, 38-41.

The defendant objects to the Court's finding that the berming of the pond was illegal by citing the Corp's phase-in exception to the Clean Water Act 33 C.F.R. § 323.4-1(b). However, that regulation allows for discharges without a permit of materials "into water other than navigable water of the United States . . . ." Implicitly, discharges of materials into navigable waterways, like the north pond, must be preceded by the acquisition of a valid permit. As the defendant did not acquire such a permit, he again violated 33 C.F.R. § 323.3(a).

The Court lastly considers the defendant's argument that the Government is estopped from prosecuting this case because of the alleged misrepresentations of Corps Agent Clutter to the defendant. Specifically, the defendant avers that he complied with all of Agent Clutter's directions concerning the scope of the Corps' jurisdiction only to find that the Corps' jurisdiction was broader than had been represented.

However, contrary to the defendant's contentions the evidence is far from undisputed as to what Mr. Clutter said to the defendant. The record does reveal that the defendant received five cease and desist orders during the period from 1976 to 1979. The defendant continually ignored those orders. Mr. Clutter testified that he explicitly pointed out areas to the defendant that should not be developed and the defendant proceeded forthwith to develop those areas. In sum, the Court finds that the defendant has not met his burden associated with proving an estoppel. On the contrary, the evidence shows that the defendant knowingly and consistently ignored both written and verbal directions from the Corps.

The Court notes that notwithstanding any possible reliance by the defendant on Mr. Clutter's representations, the law is clear that the government when exercising its sovereign powers cannot be estopped by the conduct of its agent. Deltona Corp. v. Alexander, 682 F.2d 888 [12 ELR 20963] (11th Cir. 1982). Confronting a situation similar to the case at hand, the Deltona Court specifically held that the act of granting a permit under the Clean Water Act is "unquestionably an exercise of the government's sovereign power to protect the public interest." Id. at 892. Thus, Deltona is dispositive and the defendant's estoppel argument is deficient as a matter of law.

For the reasons cited in the Court's oral findings and in this Memorandum of Decision, the Court will enter judgment against the defendant.

DONE AND ORDERED in Chambers in Tampa, Florida, this 22nd day of March, 1983.

Final Judgment

In accordance with the Memorandum of Decision filed simultaneously with Final Judgment, the Court hereby ORDERS:

1.That judgment is entered in favor of plaintiff and against defendants.

2. That the defendants shall implement and carry out the restoration of the following wetland property as shown on plaintiff's exhibit 21:

(a) the green area marked "B" by the Court shall be scraped to the natural elevation of the adjoining hardwood hammock and planted with nursery-grown seedlines of native hardwood trees, consisting of a mix of red maple, sweet bay, red bay, bald crypress, sweet gum, and laurel oak; if the seedlings are at least 3 feet in height, they shall be planted on 6 foot centers; if smaller seedlings are used, they shall be planted on 3 foot centers; no more than 50 per cent of the seedlings planted shall be of the same species;

(b) the yellow area marked "F" by the Court shall be scraped to -0.5 foot (minus half a foot) mean high water, with a plus or minus one foot variation, and planted with cordgrass on 6 foot centers; the area marked in blue within the yellow area shall be dredged to -0.5 foot (minus half a foot) mean low water;

(c) all fill material removed in the course of restoration shall be disposed of in an upland location.

3. That Professor Robert Lewis is hereby appointed this Court's monitor to supervise the restoration called for in this Final Judgment, the cost of his services to be paid by the defendants.

4. That defendants, within 30 days from the entry of this Final Judgment, shall submit to the Court, with a copy to plaintiff, a suggested plan and time schedule for completion of the restoration.

5. That defendants shall pay a civil penalty of $100,000 for the violation of the Clean Water Act which occurred when defendants filled and constructed condominiums upon the wetland area marked "G" by this Court on plaintiff's exhibit 21.

6. That in lieu of payment of said civil penalty, defendants may deed to Pasco County, Florida the approximately 200 acre area shown on defendants' exhibit 22, on condition that the deed of conveyance provided that said area remain in its current state in perpetuity, and not be altered or changed in any way.

7. That the defendants are hereby enjoined from any further unauthorized dredging, filling or construction in or on waters, including wetlands, in Pasco County, Florida.

8. That defendants' motion for a stay of this Court's Final Judgment ordering restoration is hereby DENIED.

9. That defendants' motion for a stay of this Court's Final Judgment ordering payment of a $100,000.00 civil penalty is hereby GRANTED, pending appeal.

10. That the provision of this Final Judgment shall apply to and be binding upon the defendants, their agents, successors and assigns.

1. The defendant basically argues that an isolated wetland as defined by 33 C.F.R. § 323.2(5), may be filled in without a permit pursuant to 33 C.F.R. § 323.4-2(a)(4). However, this section explicitly pertains only to non-tidal waters of the United States as defined in section 323.2(5). As noted, the north pond is clearly an adjacent wetland as defined by 33 C.F.R. § 323(a)(2) and thus does not come within the exception outlined in 33 C.F.R. § 323.4-2(a)(4).

2. The Court notes that the definition of "navigable water" in the Clean Water Act is meant to be synonymous with the definition of navigable water contained in the River and Harbors Act, 33 U.S.C. § 403. See 33 C.F.R. § 329.3. Thus, the initial construction of the berm was illegal as the defendant did not obtain a permit to berm the north pond as required by the River and Harbors Act supra. As the berm was never authorized, even if the gap was caused by a breach, the defendant was not eligible for nationwide repair permit pursuant to 33 C.F.R. § 323.4-3(a)(5).


13 ELR 20532 | Environmental Law Reporter | copyright © 1983 | All rights reserved