United States v. Fleming Plantations

Civ. Nos. 78-2110; -3111 (E.D. La. December 22, 1978)

The court finds that defendants have violated §§ 301 and 404 of the Federal Water Pollution Control Act by discharging pollutants (dredged materials) without a permit from the Corps of Engineers, enjoins further construction of two levees and a drainage ditch, and orders restoration of a fresh-water wetland to its original condition. Concluding that the definition of "wetlands" for botanical purposes and for purposes of the Corps regulations are not significantly different, the court rejects defendants' claim that the Corps' 1975 definition of areas within its permitting jurisdiction under § 404 was void for vagueness. On the contrary, the Corps' interpretation was valid and encompassed the area in question at the time the dredged materials were discharged thereon. In addition to enjoining the modification of any wetlands in the subject area and precluding further construction and maintenance of the spoil banks and levees, defendants are ordered to restore the illegally filled wetlands to their original condition by whatever means necessary. In light of this ruling, plaintiffs' separate claim for relief under the Rivers and Harbors Act is not addressed. The court does, however, retain jurisdiction for the assessment of civil penalties.

Counsel for Plaintiffs
Robert Boese, Ass't U.S. Attorney
Hale Boggs Fed. Bldg., 500 Camp St., New Orleans LA 70130
(504) 589-3545

Stanley Millan
New Orleans Dist., Army Corps of Engineers
Foot of Prytania St., New Orleans LA 70118
(504) 865-1121

Counsel for Defendants
Ralph Alexis, III
Porteous, Toledano, Hainkel & Johnson
704 Carondelet St., New Orleans LA 70130
(504) 581-3838

Counsel for Intervening Plaintiffs Orleans Audubon Society and Fund for Animals, Inc.
Patrick Rankin
Dufour, Levy, Marx, Lucas & Osborne
1006 First Nat'l Bank of Commerce Bldg., New Orleans LA 70112
(504) 529-5551

[9 ELR 20103]

Schwartz, J.:

This matter came on for trial on the complaint for preliminary and permanent injunction on November 15 and 16, 1978, and thereafter was taken under submission pending further memoranda from counsel and intervenor. Having received and having carefully considered such memoranda, the entire record, and the law, the court rules as follows:

To the extent that the following findings of fact constitute conclusions of law, they are adopted as such, and to the extent that the conclusions of law constitute findings of fact, they are so adopted.

Findings of Fact

The essential facts governing this matter are not in dispute:¹

This matter involves the construction of two levees and an interconnected drainage ditch located in a 110 acre tract east of the Village of Jean Lafitte and bounded on the north by the Fleming Canal, on the east by a line approximately 75 feet east of the socalled 20 arpent line, on the west by the drainage ditch behind Fisher School, and on the south by the California Company Canal.²

Sometime after July 25, 1975, the Parish of Jefferson through the Jefferson Parish Department of Drainage and Sewerage, in cooperation with the Village of Jean Lafitte, constructed a drainage system constisting of ditches and levees enclosing said area which was owned, possessed, and controlled by defendant Fleming Plantations which had full knowledge of the construction activities.

The construction of said levees and ditches was financed by Jefferson Parish and accomplished through the use of a marsh buggy and dragline owned by Jefferson Parish and operated by employees of Jefferson Parish. In particular, the dredging created ditches and the spoil and debris ejected therefrom were used to build the levees in question. The defendants did not preliminarily seek nor obtain any permit, license, authorization, or other approval from the U.S. Army Corps of Engineers or the U.S. Environmental Protection Agency to dredge, build levees, or effect drainage into the California Company Canal.

Thus, on June 27, 1977, the United States Army Corps of Engineers issued a Cease and Desist Order to the defendants ordering that all construction work on the levees and drainage ditches be halted. However, sometime subsequent to December 9, 1977, Mayor Leo E. Kerner of the Village of Jean Lafitte personally undertook, by hand, the repair of a breach in the levee 75 feet east of the 20 arpent line by placing spoil material into the breach which had water flowing through the breach at the time of his actions.

On June 29, 1978, the United States of America brought this action against the defendants, Fleming Plantations, a Louisiana Partnership, the Village of Jean Lafitte, Louisiana, the Parish of Jefferson, Louisiana, and the Department of Drainage and Sewerage of the Parish of Jefferson, Louisiana, alleging that between September 25, 1975 and February 28, 1977, the defendants constructed the aforesaid levee and drainage system in violation of the Federal Water Pollution Control Act, (FWPCA), 33 U.S.C. §§ 1311(a) and 1344. In accordance therewith, plaintiffs primarily seek injunctive relief and restoration of the subject area to the condition existing prior to defendant's action.

On September 25, 1978, plaintiff filed an additional complaint, alleging violations of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403 et seq. in that the drainage ditches in question allegedly altered or modified the course, capacity, or location of a navigable water of the United States, that is, the California Company Canal.³ The United States sought and obtained, on September 25, 1978, a temporary restraining order, precluding the defendants from draining the land at issue; ordering that the socalled outfall ditch, leading from the alleged 110-acre tract at issue into the California Company Canal, be plugged; and, prohibiting defendants from maintaining or taking any action in furtherance of the construction of the spoil banks and/or levees at issue in this matter.

Except for the blockage of the drainage ditch as ordered by the court, the defendants have not endeavored to restore the area in question.

Conclusions of Law

Insofar as the court is of the opinion that the defendants violated the provisions of the FWPCA for the reasons set forth [9 ELR 20104] hereinafter, it is not necessary to decide whether there was an additional violation of the provisions of the Rivers and Harbors Act.⁴

Under the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1251 et seq., ". . . the discharge of any pollutant by any person shall be unlawful," 33 U.S.C. § 1311(a), except if such discharge into navigable waters is authorized by permit issued by the Secretary of the Army, acting through the Chief of Engineers. 33 U.S.C. § 1344. In this case, the fill materials and dredged soil which defendants caused to be deposited were "pollutants" within the meaning of 33 U.S.C. § 1362(6). See P.F.Z. Properties, Inc. v. Train, 393 F. Supp. 1370, 1381 (D.D.C. 1975).

Pursuant to the mandate in NRDC v. Callaway, 392 F. Supp. 685 [5 ELR 20285] (D.D.C. 1975), the Department of the Army, Corps of Engineers, on July 25, 1975 promulgated interim regulations such as to extend the Corps' permit jurisdiction to ". . . the maximum extent permissible under the Commerce Clause of the Constitution . . ." and thus beyond the ". . . traditional test of navigability." Accordingly, "navigable waters" was administratively defined to include such waters, inter alia, as:

Freshwater wetlands including marshes, shallows, swamps and, similar areas that are contiguous or adjacent to other navigable waters and that support freshwater 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 . . . ."

33 C.F.R. § 209.120. Thereafter, the Corps published its final regulations which redefined the term "wetlands" as:

. . . those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas.

33 C.F.R. § 323.2(c).

The defendants to not dispute that the levee and drainage ditch system were constructed after the promulgation of the Corps' interim regulation of July 25, 1975 and before the promulgation of the final regulations of July 19, 1977. The only paramount issue raised by defendants is whether or not area in question was a "wetland" at the time that the dredged soil was discharged. In particular, the defendants contend that other than inundation by direct rainfall, hurricanes, and extraordinary weather, there is no showing of periodic inundation of the subject area; that most of the plant species which would have inhabited the leveed area but for the levees would not require saturated soil conditions for growth and reproduction; that the term "vegetation," within the meaning of the regulation, should not be geared to the total plant community but rather to individual plant species; and that at any rate, the Corps' regulation is void for vagueness.⁵

At the trial of this matter, plaintiff called Dr. Glen N. Montz who qualified as an expert botanist.⁶ Dr. Montz testified that from a botanical viewpoint, "wetlands" are generally those areas which have plant communities characterized by wet soils and conducive to growing aquatic vegetation. In order to assure a uniform method of determining the existence of wetlands, Dr. Montz contacted, in conjunction with a 1975 study of wetlands' in the New Orleans area, expert biologists, botanists, and others throughout the country who were instrumental in the formation of the Corps' regulations for 1975 and 1977. There were no divergent opinions and the consensus coincided with the approach and opinion of Dr. Montz. The botanical definition of wetlands, according to Dr. Montz, did not significantly differ from the administrative definitions quoted above.

Turning to the question of periodic inundation, the court notes that the Corps of Engineers, as early as October of 1975, recognizes rainfall as a source of inundation for wetlands.⁷ Such interpretation of its regulation was substantiated by the testimony of Mr. Cecil Soileau, an expert hydrologist, who had engaged in hurricane, tidal, and flood studies in the subject area.⁸ Of particular importance is Mr. Soileau's testimony that the 110 acre tract at issue would have been regularly inundated, in the absence of the levee construction, by rainfall (creating "sheetflow") and tides emanating from the Gulf of Mexico (creating "overland flow").⁹

The evidence predominantly supports Mr. Soileau's conclusions which the court adopts and accepts as true.

Moreover, the court is of the opinion that the area at issue was, prior to defendant's actions, characterized by a prevalence of vegetation requiring saturated soil conditions. Dr. Montz testified that wetland determinations by the Corps of Engineers were established by the utilization of a "plant communities" concept as opposed to a piecemeal individual species approach. After identifying vegetation that required saturated soil conditions for growth, he grouped such individual species into six general plant communities.¹⁰ Thus, Dr. Montz, by using the plant community approach, classified the subject area as a cypress-tupelogum swamp, wetland, embracing a multitude of plant species, some of which required saturated soil conditions for growth and reproduction.¹¹ Under either the 1975 interim regulation or the 1977 final regulation, according to Dr. Montz, the area was a "wetland" subject to the jurisdiction of the Corps of Engineers.¹²

Generally speaking, regulations are to be construed broadly to effect their essential purposes. Baldridge v. Hadley, 491 F.2d 859, 864 esp. n.2 (10th Cir. 1974), cert. denied, 417 U.S. 910, 94 S. Ct. 2608, 41 L. Ed. 2d 214. In the FWPCA Amendments of 1972, 33 U.S.C. § 1251 et seq., Congress stated objective, that is, ". . . to restore and maintain the chemical, physicial, and biological integrity of the Nation's waters, . . ." to eliminate the discharge of pollutants into navigable waters, to improve the water quality to assure the protection and propagation of fish, shellfish, and wildlife, and, to provide for recreational use. 33 U.S.C. § 1251(a). Also see Wyoming v. Hoffman, 437 F. Supp. 114 [7 ELR 20197] (D.C. Wyo. 1977). As observed in NRDC v. [9 ELR 20105] Callaway, supra, the regulations, in order to effect congressional policy under the FWPCA, should extend the Corps' jurisdiction to the maximum extent constitutionally permissible. Hence, the Corps of Engineers promulgated the 1977 final regulations simply as a means of clarifying and elucidating such essential purposes already underlying the FWPCA. The defendants, of course, do not contest the constitutionality of the 1977 final regulations. See Leslie Salt Co. v. Froehlke, 578 F.2d 742, 756 [8 ELR 20480] (9th Cir. 1978). Although the Corps' 1975 interim regulation may have allowed the use of a technical "loophole," Federal Register Vol. 42, No. 138, Tuesday, July 19, 1977 at page 37128, the final 1977 regulations should be given great weight in giving reasonable construction to the 1975 regulation. Cf. Federal Housing Administration v. Darlington, Inc., 358 U.S. 84, 90, 79 S. Ct. 141, 145 (1958); Glidden Company v. Zdanok, 370 U.S. 530, 82 S. Ct. 1459 (1962).

The Corps of Engineers has applied and construed the 1975 interim regulation in a manner such as to effect the essential purposes of the FWPCA, as is more clearly set forth in the 1977 final regulation. Even assuming arguendo that the administrative determination herein was premised solely on the retroactive application of the 1977 final regulation, the decision would be valid insofar as such regulation simply provides further clarification of the settled policy of the FWPCA in giving the Corps of Engineers broad jurisdictional reach. See, Anderson, Clayton & Co. v. United States, 562 F.2d 972, 984, 985, Esp. n.30 (5th Cir. 1977) cert. denied, 98 S. Ct. 2845 (1978) which quotes from K. DAVIS, ADMINISTRATIVE LAW, § 5.05 (3d ed. 1972).

The administrative decision of the Corps of Engineers, regarding the subject area as a "wetland" is a reasonably well founded application and construction of its own regulations. Accordingly, its decision must be upheld. See, Kinnett Dairies, Inc. v. Farrow, 580 F.2d 1260, 1270 (5th Cir. 1978) and cases cited therein.

Finally, the court makes the following general remarks. The evidence at the trial of this matter demonstratively supports the observation that the 110-acre cypress tupelogum swamp is gradually drying up as a result of the defendants' levees and continued drainage. In the botanical parlance, at least one half of the swamp has slowly undergone succession from a dominant vegetative composition to a shrub stage, and will ultimately transform to a dry bottomland hardwoods community. The adjacent and contiguous wetlands, which provide a productive wildlife habitat, will continue to be deprived of the valuable plant detritus, previously flowing from the area at issue. The end result of the area's impoundment, along with the continued drainage, is the destruction of approximately 110 acres of valuable natural resource, and, ecological disequilibrium in contiguous and adjacent wetlands. To the extent that such effects are contrary to congressional policy under the Federal Water Pollution Control Act, federal intervention, through appropriate injunctive relief, is in accord, and thus injunctive relief is proper herein and will be granted.

Order of Preliminary and Injunctive Relief and Restoration

In accordance with the Findings of Fact and Conclusions of Law rendered by the court this day,

IT IS ORDERED that plaintiff's request for Preliminary and Permanent Injunction be and it is hereby GRANTED, and that the defendants, their agents, employees, or representatives are specifically precluded from draining by any means, whether natural or mechanical, the wetlands of Jefferson Parish located on the eastern side of the Village of Jean Lafitte which are presently enclosed by a system of levees and/or spoil banks.

IT IS FURTHER ORDERED that the defendants, their agents, employees, or representatives are additionally specifically precluded from taking any action whatsoever in furtherance of the construction and/or maintenance of the spoil banks and/or levees which have been constructed in the wetlands of Jefferson Parish on the eastern side of the Village of Jean Lafitte and which levees form the basis for the Complaint filed by the United States in United States of America v. Fleming Plantations, a Louisiana Partnership; The Village of Jean Lafitte, Louisiana; The Parish of Jefferson, Louisiana; and The Department of Drainage and Sewerage of the Parish of Jefferson, Louisiana, Civil Action No. 78-2110 "A."

IT IS FURTHER ORDERED that the defendants restore the subject of this lawsuit to its original condition existing prior to the construction of the levees and drainage system by whatever action is necessary to accomplish such restoration including;

(1) No less than four breaches in the north-south levee of 50 feet in length;

(2) no less than three breaches in the east-west levee of 50 feet in length; and

(3) permanent closure of the drainage outfall into the California Company Canal.

IT IS FURTHER ORDERED that both the defendants and the District Engineer, United States Corps of Engineers, shall notify the court and the United States Attorney for the Eastern District of Louisiaian upon completion of the restoration work herein specified;

IT IS FURTHER ORDERED that employees or agents of the United States Army Corps of Engineers and/or the United States Environmental Protection Agency are authorized to enter upon and inspect the area encompassed by this Order to insure compliance with this Order and that such entry and inspection may be made without notice or warningto the defendants;

IT IS FURTHER ORDERED that the defendants file an after-the-fact permit concerning that area of construction which shall remain after restoration;

IT IS FURTHER ORDERED that the court shall retain jurisdiction over this matter until such time as final judgment is entered after a trial as to the issue of quantum and fines.

1. On November 14, 1978, all parties hereto entered into a stipulation as to undisputed facts upon which the court has relied in part in setting forth the facts.

2. Construction in the area consisted of: (a) a 1800 foot levee 75' east of the 20 arpent line in a generally north-south direction between the Fleming Canal on the north and the preexisting levee around the old well head just north of the California Company Canal on the south; (b) a 1400 foot levee in a generally eastwest direction between the ditch behind Fisher School on the west and the preexisting levee around the old well head on the east; (c) a 1800 foot drainage ditch parallel to the levee 75' east of the 20 arpent line; (d) two parallel drainage ditches on the north and south sides of the levee and which parallel said levee; and (e) installation of a 30-inch pump and dam in the California Company Canal.

3. The California Company Canal is a tidal waterway which has been used in the transport of drilling barges, support vessels, and in the tying up of shrimping vessels. Defendants concede that the California Company Canal is a navigable water within the meaning of the Rivers and Harbors Act. See defendants' post-trial memorandum at p.21.

4. For a similar approach see United States of America v. Golden Acres, Incorporated, No. 76-0023-Civ.-4 (E.D.N.C. Jan. 12, 1977).

5. See defendants' post-trial memorandum, esp. pp.9, 13, 18, and 25-26.

6. Dr. Montz, who has engaged in extensive research and studies for the Corps of Engineers since 1972, was instrumental in formulating a methodology for wetlands determination in the New Orleans area. He made field investigations on June 27, 1977, December 9, 1977, July 12, 1978, and August 1 and 2, 1978 and is thoroughly familiar with the levees and ditches surrounding the 110-acre tract at issue. See Montz's affidavit dated September 21, 1978 which is attached to the plaintiff's motion for temporary restraining order and/or preliminary injunction. Dr. Montz's studies with respect to this matter were extensive, complete, accurate, and objective. Likewise, his testimony was responsive and candid, and the court accepts as true his testimony in whole. The court notes that defendants failed to produce any witness to controvert Dr. Montz's testimony.

7. See testimony of Dr. Montz and Mr. Cecil Soileau.

8. See Government Exhibits 4, 5, and 6; also see also Undisputed Fact #16 referred to in footnote 1 above.

9. Tidal fluctuations in the nearby Bayou Barataria caused the California Company Canal to seep waters through, and overflow, its spoilbanks. The area at issue also provided plant detritus through sheet flows and stream flows to the contiguous estuarine waters where it contributed to the production of fishes and shellfishes. See Montz affidavit referred to in footnote 6 above and the accompanying affidavit of Dr. Lloyd F. Baehr who is also a botanist in the Operations Division, New Orleans District Corps of Engineers. Also see Conservation Council of North Carolina v. Costanzo, 398 F. Supp. 653, 668, 674 [5 ELR 20666] (E.D.N.C. 1975), aff'd 528 F.2d 250 [6 ELR 20116] (4th Cir. 1975).

10. These communities were comprised of saline marsh, brackish marsh, intermediate marsh, fresh marsh, swamp and periodically inundated bottomland hardwoods. See Public Notice, "LMNOD-S (Wetlands Determinatios)" dated November 23, 1977, a copy of which is attached to plaintiff's motion for temporary restraining order.

11. See Appendix I filed in the record by defendants on November 29, 1978 listing those plant species which, according to the testimony of Dr. Montz, would exist and have existed, absent the levee on the 20 arpent line. Nine of the cited plant species require saturated soil for growth and reproduction, i.e., Tupelogum, Buttonbush, Broadleaf Cattail, Water Hyacinth, Pickerelweed, Bulltongue, Dwarf Spikerush, Swamp-privet, and Water Elm.

12. The evidence reveals that the subject area does not contain a merely ". . . occasional aquatic vegetation interspersed with upland or dry land vegetation," Federal Register, Vol. 42, No. 138, July 19, 1977 at page 37128, but a growing proliferation of plant species widely existing in the subject area, requiring and tolerating saturated soil conditions for continued growth and reproduction.