United States v. Permenter

No. 75-542 (D.S.C. October 27, 1975)

A developer who performed certain dredge and fill activities in Myrtle Beach, South Carolina, without a permit from the U.S. Army Corps of Engineers is permanently enjoined from engaging in any further dredging activity and is ordered to pay plaintiff a civil penalty of $7,500. In creating a boat basin, widening a manmade canal to which the basin was connected, bulkheading both the basin and the enlarged canal, and filling adjacent marshlands for the purpose of residential development, defendant clearly dredged areas subject to tidal flow and filled areas below the mean high water level. This conduct violated both the Rivers and Harbors Act of 1899 and § 301(a) of the Federal Water Pollution Control Act, as amended. Under § 309(d) of the FWPCA, such violations of § 301 are subject to a civil penalty of up to $10,000 per day. Defendant is also enjoined from selling any property at the development site without prior approval of the court until the civil penalty has been paid in full.

Counsel for Plaintiff
Mark W. Buyck
151 U.S. Courthouse
Columbia, S.C. 29201

William L. Want
Department of Justice
Washington, D.C. 20530

Counsel for Defendant
John A. Martin
P.O. Box 298
Winnsboro, S.C. 29180

[6 ELR 20049]

Merhige, J.:

FINAL JUDGMENT WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW

The United States of America brought this action against Phil Permenter complaining of allegedly unauthorized excavating, filling and bulkheading in the Cherry Grove Section of North Myrtle Beach, South Carolina, in violation of § 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. § 403) and §§ 301 (33 U.S.C. § 1311) and 309(d) (33 U.S.C. § 1319(d)) of the Federal Water Pollution Control Act. The government seeks permanent injunctive relief and civil penalties. After consideration of the pleadings, trial briefs in this matter and the trial on October 21, 1975, and the court being otherwise fully advised in the premises, the court enters the following Final Judgment With Findings of Fact and Conclusions of Law.

I. Findings of Fact

1. Commencing in July of 1973, the defendant, Phil Permenter, performed or caused to be performed certain excavating, filling and bulkheading activity on a 4.47 acre tract of highland and wetland located between 48th and 49th Avenues in the Cherry Grove Section of North Myrtle Beach, South Carolina.

2. Defendant's activity included the creation of a 287-foot wide boat basin which was then unplugged and connected to a previously dug (1957) man-made slough or channel. This channel was widened by defendant from its original width of 20-25 feet to a width of 96 feet along approximately 319 feet of its course, which course leads it into House Creek. Defendant also placed in the boat basin and the enlarged man-made channel bulkheading. Defendant further filled in certain areas in the marsh or wetlands which are below the mean low water level in this vicinity.

3. House Creek, to which the man-made channel connects, forms part of the web of creeks and streams that traverse the marshes of Horry County and coastal South Carolina. House Creek empties into Hog Inlet, an estuary of the Atlantic Ocean which has been administratively declared navigable by the United States Army Corps of Engineers (Corps).

4. The man-made channel, House Creek, and the other waterways in this area are definitely subject to tidal influence. They are used by pleasure and commercial craft, and are navigable within the meaning of the Rivers and Harbors Act of 1899 (33 U.S.C. § 403) and the regulations promulgated pursuant thereto.

5. Government's Exhibit No. 1 is an aerial photograph which includes the coastal area concerned in this litigation. It demonstrates that at the time it was taken (prior to defendant's development), a portion of the filling done by Permenter was in the marshland. The photo also shows marshgrass and other vegetation along the banks of the artificial slough.

6.A comparison of Government's Exhibits Nos. 4 and 5, topographic maps prepared in 1973 and 1974 by the defendant and the Corps respectively, before and after the complained of activity, reveal that defendant filled in an area on the north-east portion of the project site which was originally below the mean high water level of 5 feet.

7. This project was commenced around July of 1973 and was halted approximately November 16, 1973, when defendant received a letter from the Corps requesting that he "cease and desist" from further work at this site.

[6 ELR 20050]

8. Government witness, John Rivers, an inspector with the Corps, testified that he made two trips to the development site, observed and photographed the area and the construction work going on there (Government Exhibit No. 2).

9. About the time defendant initiated this activity, he discussed with Corps personnel in Charleston, South Carolina, certain phases of the work he intended to perform. Defendant stated he sought the advice and consent of the Corps because of his part experience in doing such developments that no excavating and filling could be done without proper authorization.

10. Mr. Kenneth Fagg, Chief of Permit Section of Corps, testified on behalf of the plaintiff that defendant was advised at the aforesaid meeting: Not to dredge or fill in any area surveyed below the mean high water level without a Department of Army permit, and to perform all dredging 100 feet shoreward of House Creek; and not to dredge out, widen or enlarge in any way the man-made channel or canal connecting to House Creek without a permit.

11. No application was ever made by or issued to Mr. Permenter by the Department of the Army.

12. Defendant, by his testimony and responses to plaintiff's interrogatories, showed that approximately 2,000 cubic yards of material was dredged in developing this cite which was to be cut up into lots and sold for residential housing. Defendant denied dredging in the man-made canal but did admit, at least partially, unplugging the area between his boat basin and the shoreward terminus of the artificial channel.

13. Government witness, Jack Lesemann, Chief of Engineers at Corps in Charleston, stated (which I find credible), among other things, that the deepening of the man-made channel to about 9 feet below the mean high water level could not have been caused by the coming and going of the tides as contended by the defendant. But due to the hydraulics of the waterway in question, it would tend to fill rather than become [deeper] had it not been dredged.

14. Under the evidence in this case, it is clear that Permenter was determined to fill the marsh to create lots for residential housing. And by lengthening, widening and deepening the man-made slough, create access by boat to the Atlantic Ocean for his buyers.

15. At the trial, government witness, Curtiss Laffin, who is a biologist in the United States Department of Interior's Fish and Wildlife Service, testified that he and others had at times traversed by boat the waters to which the man-made canal connects. He also described the vegetation and wetlands in which defendant worked and the vital importance of this and similar areas in the life cycle of fish, bird and animal life that inhabit the oceans as well as the land. The biologist was of the opinion that removal of the bulkheading placed along the sides of the artificially created slough would hasten revegetation along its banks.

16. The destruction of marshland has a definite effect on marine ecology. Of course, it varies with the size of the altered area. What the statute and regulations require is that before any marshland or waters over which the federal government has jurisdiction is filled, excavated, modified or altered a permit must be obtained from the proper authorities. None was issued to Mr. Permenter. The fact that the effect on ecology or navigation might be small is not the controlling factor.¹ There was and is a deleterious effect in the instant case on both.

17. The Rivers and Harbors Act of 1899 (33 U.S.C. § 403) makes it unlawful to excavate or fill, or in any manner to alter or modify the course, location, condition or capacity of any channel of any navigable water of the United States without a permit. The condition and accapacity of the man-made channel and House Creek to which it joins, as well as other connecting navigable waters, have been altered and modified without proper authorization.

18. Section 301(a) (33 U.S.C. § 1311(a)) of the Federal Water Pollution Control Act provides in part that, except as authorized, discharge of any pollutant by any person shall be unlawful.

The term "pollutant" among other things is described in § 502(6) of the same Act as dredged spoil, biological materials, rock and sand.

Section 309(d) of the same Act provides in part that any person who violates § 301 above, shall be subject to a civil penalty not to exceed $10,000 per day for such violation.

The evidence clearly shows that defendant has filled an area of the wetlands at his development site which is subject to tidal flow and below the mean high water level.

19. Plaintiff, although entitled to it under the facts presented in this case, has withdrawn its prayer for restoration of the area by removal of all bulkheading, and seeks only a permanent injunction enjoining further activity by defendant and for imposition of a civil penalty. In view of the present thinking of the Corps and the Department of Interior that the area in question will be revegetated and restored almost as quickly with the bulkheading left standing, its removal will not be required.

II. Conclusions of Law

1. This court has jurisdiciton pursuant to the provisions of 28 U.S.C. § 1345 and 33 U.S.C. § 406.

2. For regulatory purposes the jurisdiction of the Corps of Engineers as to "navigable waters" extends "laterally to the entire water surface and bed of a navigable water body." It "includes all the land and water below the original high water mark." In coastal areas jurisdiction extends to the line on the shore reached by the plane of the mean (average) high water. Marshlands are "navigable in law" only so far as the area is "subject to inundation by the mean high waters." 37 Federal Register. No. 176, Part 209.260. See United States v. Lewis, 355 F. Supp. 1132 [3 ELR 20500] (S.D. Ga. 1973). A related theory extends regulatory jurisdiction to any area subject to tidal ebb and flow without discussion of the mean high water determination of the edge of the waterbody. United States v. Underwood, 344 F. Supp. 486, 491, [2 ELR 20567, 20569] 4 ERC 1305, 1308 (M.D. Fla. 1972).

3. The government charged the defendant with violation of § 301(a) of the Federal Water Pollution Control Act Amendments of 1972 (FWPCA). To sustain this allegation, two showings were made. First, plaintiff established that Permenter's acts were such as to be prohibited if done in waters under federal jurisdiction in that the fill material used is encompassed in the Act's definition of a pollutant as set forth above. Second, plaintiff showed that the waters receiving the impact of the prohibited conduct were indeed within the jurisdictional ambit in that the wetlands filled were subject to the ebb and flow of the tide and below the mean high water level.

4. The activities of the defendant described in the foregoing Findings of Fact constitutes a violation of the Rivers and Harbors Act of 1899 (the Act), (33 U.S.C. § 403) by: (1) building a structure (bulkheading), (2) excavating within navigable waters of the United States, and (3) altering and modifying a navigable water, all without proper federal authorization.

The Act covers the building of structures and the excavating and filling in navigable waters as well as modifying or altering of same. It is a flat prohibition unless — the unless being the issuance of approval by the Secretary of the Army after recommendation of the Chief of Engineers. Zabel v. Tabb, 430 F.2d 199, 207 [1 ELR 20023, 20027] (CA 5, 1970), cert. denied 401 U.S. 910 (1971).

The Corps of Engineers need not show how serious the effect of connecting, widening, deepening or extending a connected canal will be in order to have jurisdiction under 33 U.S.C. § 403. The developer must apply for and be granted a permit for any canal. See Tatum v. Blackstock, 319 F.2d 397 (CA 1963).

5. Defendant admitted in his testimony at trial that he further violated the Rivers and Harbors Act when he unplugged the area between his artificially created boat basin and the tidal man-made slough or canal. See the unpublished opinion in United States v. Wichard, [4 ELR 20819] Civil Action No. 797 (E.D.N.C. Feb. 7, 1974). See also, United States v. Sexton Cove Estates, Inc., et al., [5 ELR 20348] Civil Action No. 74-1067 (S.D. Fla. 1975).

6. The activities described in the above Findings of Fact also reveal that the defendant, Permenter, is in violation of § 301 of the Federal Water Pollution Control Act as amended (33 U.S.C. § 1311), and as provided in § 309(d) of said Act (33 U.S.C. § 1319(d)). This was accomplished by his depositing dredge material and/or sand in a wetland area, which is subject to tidal influence and below the average high water level. The polluting of this area without a proper permit, within the definition of the "waters of the United States" was a violation of the FWPCA. See United States v. Holland, et al., 373 F. Supp. 655 [4 ELR 20710] (M.D. Fla. 1974).

[6 ELR 20051]

7. No estoppel will lie in this case. Defendant performed work which the Corps specifically advised should not be done. Yet, Permenter saw fit to undertake the proscribed activity even in the face of such advice and with the benefit of his past knowledge in similar developments. Even had defendant been given incorrect advice in the first instance, which is not the case here, by Corps representatives, the United States may not ordinarily be estopped from asserting lawful claim or waive its rights by the erroneous or unauthorized actions or statements of its agents or employees. Atlantic Richfield Co. v. Hickel, 132 F.2d 587, 591-592 (CA 10, 1970).

III. Final Judgment

After due consideration of the aforementioned Findings of Fact and Conclusions of Law, it is hereby

ORDERED AND ADJUDGED that the defendant, Phil Permenter, his servants, agents, employees, attorneys, successors, and assigns and each of them be permanently enjoined and restrained from engaging in or permitting, suffering or causing, directly or indirectly, any fill, excavating or modification or alteration in or to the area in dispute, bounded by 48th and 49th Avenues on the west and east, Lake Drive and House Creek on the south and north, in the Cherry Grove Section, Horry County, North Myrtle Beach, South Carolina, and it is further

ORDERED AND ADJUDGED that the defendant shall suffer a civil penalty in the amount of seven thousand five hundred and 00/100 ($7,500.00) dollars, which sum defendant shall pay to the clerk of this court within fifteen (15) days of the issuance of this Order; and, it is further

ORDERED AND ADJUDGED that the defendant is permanently enjoined from participating in any manner in the selling, conveying, or disposing of any real property at this development site without the prior approval of the court until the aforesaid civil penalty is paid in full.

1. ". . . works in wetland areas, particularly estuarine areas . . . are often carried out in an uncoordinated and haphazard manner, and the result is the piecemeal destruction of valuable wetlands, marshes and coastal estuarine areas." House Committee on Government Operations, Increasing Protection of Our Waters, Wetlands, and Shorelines: The Corps of Engineers, H.R. No. 1323, 92d Cong., 2d Sess. at 7 (1972).