United States v. Smith

No. 74-34-NN (E.D. Va. April 21, 1974)

A landowner's dredging of a creek, filling of marshlands adjacent to his property, and construction of a bulkhead below the mean high water line without permits from the Corps of Engineers violates both the Rivers and Harbors Act of 1899 and the Federal Water Pollution Control Act Amendments of 1972. The court rules that defendant's violation of § 301(a) of the FWPCA on at least one day subjects him to a civil penalty not to exceed § 10,000, but conditions imposition of such a fine on progress in the implementation of a restoration plan for the wetland area. Defendant is ordered to elect either the restoration plan proposed by the Corps of Engineers or that put forth by the Virginia Institute of Marine Science, and to commence and complete such restoration as soon as possible

Counsel for Plaintiff
Edward R. Baird, Jr. Asst. U.S. Attorney
P.O. Box 60
Norfolk, Va. 23501

Counsel for Defendant
V. Cassel Adamson, Jr.
519 E. Main Street
Richmond, Va. 23219

[5 ELR 20382]

Clarke, J.

ORDER

THIS CAUSE having come before the Honorable Court upon a complaint for injunctive relief and civil penalty by the United States of America, and after consideration of pleadings in this matter, the final pre-trial order filed by the parties at the pre-trial conference on February 24, 1975, the trial March 18, 1975, and the Court being otherwise fully advised in the premises, the Court enters the following judgment with Findings of Fact and Conclusions of Law.

I. FINDINGS OF FACT

This action was brought by the United States of America pursuant to the Rivers and Harbors Act of 1899 (33 U.S.C. §§ 403 and 406) and the 1972 Amendments to the Federal Water Pollution Control Act (33 U.S.C. §§ 1251-1376), for injunctive relief (1) restraining the defendant, Raymond B. Smith, from conducting further excavation or filling or in any manner altering the course, condition or capacity of Stutts Creek adjacent to defendant's property in Mathews County, Virginia; (2) requiring defendant to restore pre-existing marsh wetlands to their condition prior to the filling activities of the defendant; (3) a civil penalty not to exceed $10,000; and (4) for such further relief as the Court might deem appropriate.

At the trial held on March 18, 1975, testimony was taken from the following witnesses:

MR. J. W. (WOODY) HOLTON, JR., Professional Civil Engineer and Certified Land Surveyor, Army Corps of Engineers, Norfolk District

MR. THOMAS BERNARD, Assistant Marine Scientist, Virginia Institute of Marine Science

COLONE (RETIRED) GEORGE M. DAWES, Assistant Marine Scientist, Virginia Institute of Marine Science

MR. HERMAND L. THOMPSON

MR. CHARLES WROTTEN, JR., Marine Contractor

MR. FLEET FOSTER, Marine Contractor

MR. MARK HARRELL, Civil Engineering Technician, Permits Section, Norfolk District, Army Corps of Engineers

COLONEL ROBERT E. AYERS, District Engineer, Norfolk District, Army Corps of Engineers

RAYMOND B. SMITH, Defendant

In addition, several photographs, soundings charts, plat maps and numerous documents were introduced into evidence. At this proceeding the following were established by the preponderance of the evidence to the Court's satisfaction:

1. Mr. Charles Wrotten, Jr., entered into an agreement with the defendant to undertake certain dredging in Stutts Creek adjacent to defendant's property on Stutts Creek, Mathews County, Virginia.

2. The defendant had knowledge that certain dredging was undertaken by Mr. Wrotten during June 1973 in Stutts Creek.

3. During June 1973 and thereafter, the defendant either willfully placed or discharged dredged spoil or dirt in marsh wetlands of Stutts Creek, or caused such dredged spoil, as a result of the prior dredging activity, to be washed into said marsh wetlands of Stutts Creek, on or adjacent to defendant's property in Mathews County, Virginia.

4. The defendant constructed or caused to be constructed in December 1973 a bulkhead below the mean high tide line in Stutts Creek on or adjacent to defendant's property in Mathews County, Virginia.

5. The Corps of Engineers Survey did not directly show the location of the mean high water mark on the defendant's wetland areas since this would have required twelve months of tide guage readings in that particular area. The Corps survey, in conjunction with testimony of the Virginia Institute of Marine Science experts, did however show where the particular types of marsh grasses had grown and where the boundary line between them had been.

6. Evidence from experts at the Virginia Institute of Marine Science established generally that the marsh grass salt cordgrass (spartina alterniflora) is regularly innundated by salt water and grows below the mean high water mark and that the marsh grass salt meadow bay (spartina patens) is periodically flooded under normal contitions by salt water and grows above the mean high water mark. Consequently the boundary between salt cordgrass (spartina alterniflora) and salt meadow bay (spartina patens) generally follows the mean high water mark.

7. Classification of the marsh grasses, the Corps of Engineers' survey photographs, data, and visual observations established that the marsh wetlands on or adjacent to defendant's property were in part below the mean high water mark and were regularly innundated by the tide, and in part were above the mean high water mark and were periodically innundated by the tides of Stutts Creek.

8. The marsh wetlands on or adjacent to defendant's property were within the definition of "wetlands" under the Virginia Wetland Act (Code of Virginia, § 62.1-13.2(f)).

9. Stutts Creek, a tributary of Milford Haven, is navigable-in-fact.

10. The defendant has not been granted a Department of the Army permit issued through the Army Corps of Engineers for the foregoing activities as required by 33 U.S.C. §§ 403 and 1344. The defendant submitted an application to the Corps for a permit; however, said application (and the revised application) did not encompass the dredging as completed, nor the filling of the marsh wetlands.

11. The effective date of the 1972 Amendments to the Federal Water Pollution Control Act was October 18, 1972.

[5 ELR 20383]

12. The Army Corps of Engineers Plan of Restoration and the VIMS Plan of Restoration are each considered to be reasonable.

The Court is of the opinion that the foregoing facts establish acts of sufficient scope to warrant federal jurisdiction under the Rivers and Harbors Act of 1899 and the 1972 Amendments to the Federal Water Pollution Control Act.

II. CONCLUSIONS OF LAW

The Court has jurisdiction over the subject matter and the parties to this action.

1. By virtue of the findings of fact that Stutts Creek is navigable-in-fact under the federal test, it is a navigable water of the United States.

2. The dredging (excavation) and construction of a bulkhead (building of a structure) by the defendant within the navigable waters of the United States as described in the above Findings of Fact constitute a violation of the Rivers and Harbors Act of 1899 (33 U.S.C. §§ 403 and 406).

3. The federal regulatory jurisdiction over the navigable waters of the United States under the Rivers and Harbors Act of 1899 (33 U.S.C. § 403 et seq.) extends up to the mean high water mark. However, the much broader federal jurisdiction over "waters of the United States" under the 1972 Amendments to the Federal Water Pollution Control Act (33 U.S.C. § 1362(7)), extends well beyond the mean high water mark to marsh wetlands which are regularly or periodically innundated. United States v. Holland, 373 F. Supp. 665 (M.D. Fla. 1974), Weiszmann v. Corps of Engineers, 7 ERC 1523, 1526, __ F. Supp. __, (S.D. Fla. 1975); See: Leslie Salt Co. v. Froehlke, 7 ERC 1311, __ F. Supp. __, (N.D. Cal. 1974); United States v. Ashland Oil and Transportation Co., 364 F. Supp. 349, aff'd. 504 F.2d 1317 (6 Cir. 1974).

4. The marsh wetlands of Stutts Cleek on or adjacent to defendant's property which were in part below the mean high water mark and in part above the mean high water mark were under normal conditions innundated by the tides, and therefore constitute "waters of the United States" under the definition of the 1972 Amendments to the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. § 1362(7).

5. The defendant's filling activities on and his causing or permitting of fill material washing onto marsh wetlands regularly or periodically innundated by tidal waters constituted a discharge into the "waters of the United States" and was thus a violation of § 301(a) of the 1972 Amendments to the Federal Water Pollution Control Act (33 U.S.C. § 1311(a)).

6. The United States need not prove irreparable injury or an inadequate remedy at law to obtain injunctive relief under the Rivers and Harbors Act, United States v. Underwood, 344 F. Supp. 486, 494-495 (M.D. Fla. 1972); United States v. Stoeco Homes, Inc., 498 F.2d 597, 611 (3 Cir. 1974); and Weiszman v. Corps of Engineers, __ F. Supp. __, 7 ERC 1523, 1526 (S.D. Fla. 1974).

7. The defendant's violation of the FWPCA (33 U.S.C. § 1311(a)) on at least one day subjects the defendant to a civil penalty not to exceed $10,000 (33 U.S.C. § 1319(d)).

8. There remains for consideration whether or not the Court, having found that the defendant violated 33 U.S.C. §§ 403 and 1311(a), should order restoration under 33 U.S.C. §§ 406, 1319(d) and 1344 and the inherent equitable power of the Court.

9. Imposition of a civil penalty under 33 U.S.C., § 1319(d) will be dependent upon progress in the implementation of a plan of restoration, and accordingly consideration thereof will be reserved.

III. ORDER

ORDERED AND ADJUDGED that defendant, Raymond B. Smith, will remove completely all materials from the marsh wetlands adjoining both the north and south side of his property, and to restore said marsh wetlands to their condition prior to the filling activity, and it is further

ORDERED AND ADJUDGED that defendant, Raymond B. Smith, shall within 15 days of the issuance of this order, elect the Plan of Restoration proposed either by the Army Corps of Engineers or by the Virginia Institute of Marine Science, and it is further

ORDERED AND ADJUDGED that upon election of the Plan of Restoration, the defendant, Raymond B. Smith, will immediately commence said restoration and shall complete the same as soon as is reasonably possible, and give notice to the Corps of Engineers upon completion of the work;

It is further ORDERED that the existing bulkhead need not be removed except the portion thereof shown to be removed and replaced in a different position on the plans of restoration prepared by the Army Corps of Engineers and the Virginia Institute of Marine Science.