ELR Citation: ELR 21270
No(s). 95-1301(RCL) (D.D.C. Apr 10, 1997)

The court holds that a U.S. Environmental Protection Agency (EPA) penalty determination is warranted, under the Federal Water Pollution Control Act (FWPCA), for a landowner who fills in wetlands without a permit. The court first holds that the EPA Regional Administrator adequately considered the nine factors, set forth in FWPCA §309(g)(2)(A), for determining the reasonableness of the $5,000 penalty recommended by the EPA Regional Judicial Officer. The extensive restorative efforts undertaken by the defendant-appellant do not equate to a dismissal of the penalty; the fines exist in order to deter FWPCA violations from occurring in the first place. Also, a portion of the illegally filled wetland was still filled almost four years after the initial discovery of the alleged violation, and the defendant-appellant neither complied with an EPA order demanding prompt restoration nor responded to EPA's repeated attempts at communication. The Regional Administrator also considered the claim that conflicting government orders and miscommunications regarding the restoration caused the lengthy delay, but found that it was the defendant-appellant's burden to move forward with the restoration. The court finds this consideration adequate and holds that it was not an abuse of discretion to decide that an administrative penalty was in order.

The court next rejects the defendant-appellant's argument that because she received a permit, from the York County Conservation District, York, Pennsylvania, to replace drain tiles, the allegedly conflicting EPA determination of an FWPCA violation was an abuse of discretion. While the county permit allowed the defendant-appellant to replace existing drain tiles, the permit in no way made it lawful for her to breach the FWPCA by discarding drain tiles into a protected wetland. The court also rejects the defendant-appellant's arguments that the "run of the mill" nature of her acts and the relatively small area of unrestored wetlands (0.89 acres) diminishes the seriousness of her culpability. The accumulation of similar violations points to a serious environmental problem; thus, the imposition of a penalty to deter similar violations is not an abuse of discretion.

Lastly, the court holds that justice required the imposition of an economic sanction. The defendant-appellant had no prior FWPCA violations, derived no economic benefit from the violation, and had a low degree of culpability; however, the Regional Administrator balanced those factors against the seriousness of the violation and all other statutory considerations and determined that a monetary penalty was in order. Also, the penalty was one-fifth of that which was authorized. The court finds that such a determination cannot be an abuse of discretion.

Counsel for Appellant
Carole C. Perez, Richard S. O'Connor
D'Erasmo, Shure & Perez
103N. Adams St., Rockville MD 20850
(301) 762-8860

Counsel for Appellee
Lois J. Schiffer
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000