ELR Citation: ELR 20445
No(s). 88-30275 WEA (N.D. Fla. Nov 3, 1989)

The court holds that developers cannot qualify for a silviculture exemption to the Federal Water Pollution Control Act §404 permitting requirements to dredge or fill a wetland because they cannot show that their conduct was part of an ongoing silviculture operation and because modification of the property was necessary to initiate farming. In addition, the existing silivicultural exemption is nullified where the landowner discharges new dredge or fill material into navigable waters. Even if the developers could qualify for a silviculture exemption under §404(f)(1), any exemption would be nullified under §404(f)(2) because plaintiffs were engaged in a new activity with substantial consequences for the hydrology of the wetlands. Finally, the developers' discharge of material into navigable waters without authorization from the U.S. Army Corps of Engineers violates the Rivers and Harbors Act. The court holds that developers are liable for the restoration of wetlands and for civil penalties under §404 of the Clean Water Act and under the Rivers and Harbors Act.

Counsel for Plaintiffs
Mark Proctor
Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell
P.O. Box 12308, Seville Tower, 226 S. Palafox St., Pensacola FL 32581
(904) 435-7000

Counsel for Defendants
Samuel Alter, U.S. Attorneys Office
114 E. Gregory St., Pensacola FL 32501-4972
(904) 434-3251