United States v. Riverside Bayview Homes, Inc.

Civ. No. 77-70041 (E.D. Mich. February 24, 1977)

The court enjoins filling of land below a specified contour line because the land has been periodicaly inundated, supports wetland vegetation, and thus comes within the regulatory scope of the Corps of Engineers. Plaintiff seeks to enjoin filling on the unfilled portion of defendant's 80-acre parcel, claiming that it constitutes "freshwater wetlands." The property fits one half of the regulatory definition of wetlands, as it is characterized by the prevalence of vegetation that requires saturated soil conditions. The property is contiguous to a navigable water, Black Creek, a tributary of Lake St. Clair, as shown by the continuity of vegetation to the water. Expert testimony shows, however, that the contiguous navigable waters have not contributed to the presence of the wetland vegetation. Although the Corps regulation does not define "periodic," the testimony shows that the property in question has been inundated only 17 percent of the time during the 80 years of recorded lake levels. The court determines that periodic means at least five instances and establishes a corresponding contour line below which filling is enjoined.

For moving papers in this case, see ELR 65465.

Counsel for Plaintiff
Samuel J. Behringer, Ass't U.S. Attorney
817 Federal Bldg., 231 W Lafayette, Detroit MI 48226
(313) 226-7715

Melvyn B. Kalt, Ass't District Counsel
Army Corps of Engineers, P.O. Box 1027, Detroit MI 48231
(313) 226-6821

Counsel for Defendant
Robert P. Dank
Dank, Kaser & Smith
44 First St., Mount Clemens MI 48043
(313) 469-4100

[7 ELR 20445]

Kennedy, J.:

Plaintiff seeks a preliminary injunction restraining defendants from further filling certain land in Macomb County, Michigan, owned by defendant Riverside Bayview Homes, Inc. (hereinafter referred to as Riverside), unless a permit is issued for such filling operations by the United States Corps of Engineers.

The property owned by defendant Riverside consists of two adjacent parcels, one approximately 60 acres which was subdivided and platted in 1916,¹ [Exhibit 39], and an adjacent parcel to the north and east, of approximately 20 acres which has never been platted.² Riverside had already filled a portion of the property, some of it without objection. It is plaintiff's position that all of the unfilled property to the south and east of the present fill is a "wetland" as defined by the regulations adopted by the Corps of Engineers pursuant to authority granted under the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. This statute grants to the Corps of Engineers, acting on powers delegated by the Secretary of the Army, authority to regulate and either permit or refuse to permit fill to be placed on certain land. Plaintiff relies specifically on subsection (h) of paragraph (d)(2)(i) of the regulations. Paragraph (h) provides:

Freshwater wetlands including marshes, shallows, swamps and similar areas that are contiguous or adjacent to other navigable waters and that support vegetation. "Freshwater wetlands" means those areas that are periodically inundated and that are normally characterized by the prevalence of vegetation that requires saturated soil conditions for growth and reproduction.

Numerous witnesses testified at hearings held January 13, 15, 17, 19, 20, 21, and 22; voluminous exhibits were presented to the court. At the request of all parties, the court viewed the area in question on Saturday, January 22, 1976.

Several of the government's witnesses testified that vegetation now in the property is wetland vegetation; i.e., it requires saturated soil conditions.Indeed, defendants' witnesses conceded that there was wetland vegetation. The only dispute between the witnesses was as to the classification of the wetlands. Based upon all of the evidence, the court finds that the unfilled portion of the property is now "characterized by the prevalence of vegetation that requires saturated soil conditions for growth and reproduction."

The court further finds that the property is contiguous to a navigable water, namely Black Creek, a tributary of Lake St. Clair. Defendants' property is separated from both Black Creek and from the man-made channels of Savan Drain which connect with Black Creek by approximately 200 feet at the southeast corner, where a north-south drain which connects to the Savan Drain approaches the closest to defendants' property, and by two ten-acre parcels along the south boundary. This area which separates the legal boundaries of defendants' land from the navigable waters of Black Creek and the canals and drain is also "characterized by the prevalence of vegetation that requires saturated soil conditions for growth and reproduction." In determining whether an area is contiguous, the court must look at whether the wetland type vegetation continues to the navigable waters. Any other interpretation would permit a landowner of contiguous and adjacent wetlands to deed a ten-foot strip between the navigable water and his property to some third person and then claim that the wetlands were no longer contiguous or adjacent.

Sharply conflicting testimony was offered by plaintiff's experts and Riverside's expert as to the reason for the "prevalence of vegetation that requires saturated soil conditions for growth and reproduction." Plaintiff's experts were of the opinion that the water in Lake St. Clair, Black Creek and the canals or channels, and the overflow from the same were the principal causes of the prevalence of such vegetation. None of these witnesses, however, were soil experts and none had done any definitive tests on the soil. Only one expressed an opinion as to the type of soil (he testified it was muck), but this was based on visual inspection and not, by his own admission, on laboratory tests which would be the appropriate scientific method to use.

Mr. Thomas P. Gough, Macomb County Public Works Commissioner and formerly District Commissioner of the United States Soil Conservation Service, testified that the reason for the prevalence of wetland type vegetation on this particular property was the type of soil found on the property and not its proximity to Lake St. Clair, Black Creek, or any canals feeding into them. Based on studies done by the Department of Agriculture in 1968, Soil Survey, Macomb County, Michigan Exhibit 28, he testified that the soil on the property in question was Lamson soil, not muck or marsh, and that type of soil would and does support "vegetation that requires saturated soil conditions for growth and reproduction" whether it is found near Lake St. Clair or several miles inland. He testified that the nearness of the lake and the canals had no hydrological effect on the soil beyond a 50- to 100-foot distance. The court finds his testimony logical, based upon knowledge and qualifications superior to that of the plaintiff's expert witnesses, and accepts it. Thus, it finds that except for such portions of the property as have been inundated and then only for the period of inundation, the contiguous navigable waters have not contributed to the wetland type of vegetation on defendants' property.

The 20-acre parcel of defendants' property is directly south and across the River Road from the Clinton River. River Road is a raised road bed. Mr. Gough testified that the water in the river was not the cause of the prevalence of existing vegetation in the 20 acres for the same reason; i.e., that it does not drain well, that Lamson soil is characterized by high water table and water near [7 ELR 20446] the surface, and if it is tiled, tiles must be no more than 100 feet apart since the water will not pass through such soil a distance of over 50 feet. The court also credits this testimony and so finds.

The regulation under which the Corps of Engineers claims jurisdiction requires not only wetland vegetation but also that the area be "periodically inundated."

This is the most difficult issue to resolve in determining whether Riverside's property is subject to the permit requirement of the statute. Is it "periodically inundated" by water from Lake St. Clair, the Black River or the canals? Inundated, of course, means flooded, and is easy of definition.³ Periodic, however, is much more difficult. The instant regulations were adopted in haste following a decision by the United States District Court for the District of Columbia in NRDC v. Callaway, 392 F. Supp. 685 [5 ELR 20285] (1975), holding that the previously adopted regulations were insufficient to cover the statutory objective. The Corps of Engineers published in Vol. 40, No. 88, Part I, FEDERAL REGISTER for May 6, 1975, four alternative sets of proposed regulations. As noted there, because of the time constraint of the district court's order, the Agency was not "able to prepare an environmental impact statement pursuant to the National Environmental Policy Act and the Guidelines of the Council on Environmental Quality." Perhaps for the same reason of haste, the regulations do not define periodic when dealing with inundation of fresh water wetlands. When defining other terms, such as "ordinary high water mark" with respect to inland fresh water, the regulations are quite specific. Section 209.120(d)(2)(h)(ii)(a) states that it "is established as that on the shore that is inundated 25% of the time." Where specific data are not available, it can be estimated by the characteristics of the area.

The dictionary definition of "periodic" and the noun from which it derives, "period" are helpful but not conclusive. Websters, supra, defines "periodic," as aplicable here, as follows:

1. Of, pertaining to or performed in a period, or regular revolution of a heavenly body, as a planet's periodic time or motion.

2. Characterized by periods, occurring at regular stated times, acting, happening, or appearing at fixed intervals; loosely, recurring; intermittent; as periodic epidemus.

3. Consisting of a series of stages or processes, which is regularly repeated; as a periodic vibration.

It also defines:

Periodic Curve —

Math and Physics. A curve formed by the continued repetition of some part of itself.

Periodic motion —

Physics. A recurrent motion in which the intervals of time required to complete one cycle and begin another are equal.

Periodic star —

Astron. A variable star whose changes in brightness occur at fixed periods.

Period is defined as:

4. A portion or division of time. Specif.: a. A portion of time as limited and arranged by some recurring phenomenon, as by the completion of a revolution of a heavenly body; a division of time, as a series of years, months or days in which something is completed, and ready to recommence and go on in the same order; cycle; tidal periods; the annual period of Uranus.

17. Physics & Elec. The interval of time required for a periodic motion or phenomenon to complete a cycle and begin to repeat itself; as, the period of a pendulum or of an oscillatory or alternating current. The period in seconds equals one divided by the frequency in cycles per second.

Turning then to the periods in which the land has been inundated, the evidence established the monthly mean water levels of Lake St. Clair. It was also established that the level of Lake St. Clair would control the level of Black Creek and the canals or channels in the area of the property belonging to defendants. This level has varied from a high in 1973, of 576.5 feet to less than 571 feet.

The testimony of Mr. Benjamin DeCooke was that the mean of Lake St. Clair's monthly mean water levels is 573.15 feet. He also stated that the mean high water level of the lake, a level that is one standard deviation above the mean, is 574.4 feet. The lake would be at or above its mean high water level about 16 percent of the time. He further testified that the normal distribution of Lake St. Clair water levels was such that a level of 575.0 feet would be two standard deviations above the mean; this level would be reached or surpassed about two percent of the time. See United States Department of Commerce, Handbook of Mathematical Functions 968 (Applied Mathematics Series No. 55; 1964).

Mr. DeCooke further testified that the water levels for a month normally varied six inches up or down from the mean. The greatest recalled high from the monthly mean was, he testified, one and one-half feet. Although there is no contour map of defendant's property, there are maps providing a number of elevations from 580.20 to 576.81 [Exhibit 59]. The mean of the elevations on the south and east of defendants' property is 574.6, ranging from 575.70 to 574.45. Using the monthly mean level of Lake St. Clair in Exhibit 52, and adding six inches, the normal variation, it is immediately apparent that there have been long periods of time when none of the property was inundated by water from contiguous or adjacent navigable waters. Indeed, this has been true most of the time. Recent high water levels (1973-1975) have been the highest since Lake St. Clair levels were first recorded in 1897. Using the average elevation of the most southerly and easterly boundaries of Bayside properties of 574.6, there have been periods in only 14 of the 80 years of recorded lake levels in which the monthly mean inundated the property, — or, 17 percent of the time. Some of the higher elevations have been inundated only during the last recent unprecedented high water or have never been inundated.

What case law there is on the subject of periodic inundation is not helpful in the instant case. In United States v. Holland, 373 F. Supp. 665 [4 ELR 20710] (M.D. Fla. 1974), the court found certain mangrove swamps periodically inundated where the United States Geological Survey tide gauge data indicated that 50-100 tides exceeded two feet in the subject water each year. This frequency and yearly occurrence clearly justifies a conclusion that it was periodic. The evidence in the instant case disclosed that portions of defendant's property had been farmed in past years [testimony of Harry Helger and Exhibits 26 and 26a].

In United States v. Golden Acres, Inc., No. 76-0023-Civ-4 (E.D.N.C. Jan. 13, 1977), the court found the property (on the Intercoastal Waterway) inundated in periods of storms [Finding 6].Although there is no express finding of how often these storms would occur, it may be presumed that they would at least occur annually.

Clearly, a single inundation would not be periodic, not would two. Here, as to certain portions of the land, there have been three inundations in 80 years. They have been at, roughly, 20-year intervals, but not in accordance with any fixed cycle or certain duration.

The Corps of Engineers has apparently adopted an elevation of 575.7 as the level below which it claims jurisdiction [Exhibit 59].However, no evidence was offered as the basis for this decision. If the level of 575 is adopted it would not have been exceed since recording of lake levels in Lake Clair began in 1897, until 1929, when the lake level reached 575.7 and exceeded 575 for three months. The next time 575 was exceeded was in 1951 and 1952, then, again, in 1969, and finally in the 1972-1975 unprecedented [7 ELR 20447] high-water period when many, many established homes and subdivisions were inundated. If the Corps of Engineers' figure of 575.5 were adopted, it would have been exceeded only in 1973-1974, the years of unprecedented high-water levels in the Great Lakes. Although the inundation lasted for several months, the court believes the period should be considered as a unit. Considering the history of the water levels presented to the court, this period of flooding is not "periodic." It constitutes less than 2 percent of the time that the lake levels have been recorded.

The court is left in the unenviable position of having to define "periodic" without knowing the reason for the adoption of this standard. Counsel for the government has argued that it is to conserve the wetland for habitat of wetland creatures. Yet, this regulation does nothing to prevent defendant from tilling the area so that except during the brief periods it is inundated wetland vegetation could not survive. Indeed, counsel for defendant urges that periodic inundation means inundated sufficiently often so that the inundation is the reason for the presence of wetland type vegetation. That standard has a rational basis but is not the one stated in the regulation. In the court's opinion, something that has occurred less than five times in the last 80 years cannot be said to have occurred periodically. If treating the years 1972-1975 and 1952-1953, as one occurrence, then the lake levels have exceeded 575 feet only four times (1928, 1953-1953, 1969 and 1972-1975). If the level of 574.9 feet were to be considered, the number of occurrences would increase to six. From this it is clear that determining the level at which the inundation would be considered "periodic" is difficult and perhaps somewhat arbitrary. The court must choose the point at which an occurrence became periodic. It has selected more than five. It therefore determines that the appropriate level is 575 feet, plus the half-foot of normal monthly fluctuation above the mean. The court, therefore, hereby enjoins the fill of all land south and east of a contour line of the elevation of 575.5. If there are pockets of lower-lying lands entirely within this contour line, they may be filled. All fill is enjoined, however, until a survey has been made and filed with the court, and the government has had a reasonable opportunity to object to its accuracy. Defendants may, of course, apply for a permit to fill any additional land.

1. Water mains and fire hydrants were installed at that time in a portion of the property in dispute.

2. Defendant Allied Aggregate Transportation Company is a contractor engaged in hauling dirt to the site. If Riverside is enjoined the injunction will extend to it as well since it claims no independent right to fill.

3. Websters New International Dictionary, Second Edition, Unabridged, defines inundate as follows:

1. to cover with a flood; to overflow; deluge; flood.

2. to fill with an overflowing abundance or superfluity; as, the country was inundated with bills of credit.

Synonym = overwhelm, submerge, drown.