ELR Citation: ELR 20776
No(s). 91-10107-CIV-KING (S.D. Fla. Jan 13, 1995)

The court holds that lots located on Big Pine Key, Florida, into which the owner of the lots placed fill material without the necessary Federal Water Pollution Control Act (FWPCA) permit, were "adjacent," rather than "isolated," freshwater wetlands at the time of the owner's activities, and that the owner was, therefore, not eligible for a general or nationwide fill permit. The court first finds that all of the lots in question are adjacent freshwater wetlands. The water levels meet the minimum hydrological criteria of the 1987 Federal Wetlands Delineation Manual for determining whether property was "wetland" under the FWPCA. Also, continuous wetlands exist from the lots to a navigable waterway. The court next finds that the owner's spreading, leveling, and filling activities caused identifiable adverse effects on the sites, and that these activities constituted discharges of pollutant under the FWPCA. The court next holds that the lots are freshwater wetlands. The lots met the three criteria for wetlands set forth in the 1987 Manual: more than 50 percent of the dominant species are obligate wetlands species, facultative wetland species, or facultative species; the presence of hydric soils; and soil saturation for a set amount of time as determined by a hydrology test. The court next holds that the wetlands are adjacent to waters of the United States. Although a road impedes or partially blocks the free flow of the surface connection between the lots and a channel, the wetlands are still adjacent, since by regulation, man-made barriers cannot be considered isolating mechanisms. Moreover, the wetlands and the channel are connected through groundwater and through surface waters during storm events. Also, from an ecological standpoint there is support for finding the wetlands to be adjacent. Because the lots are adjacent wetlands, not isolated wetlands, the owner could not engage in such activities using a general or nationwide permit, but rather needed a FWPCA §404 dredge and fill permit, which the owner never obtained. The court also holds that the government waived any restoration rights it may have, as well as any finding of FWPCA violations, for activities on a major portion of one lot that the government had earlier advised the owner was upland and not wetland. The court holds that the owner's continuous and continuing disregard for the U.S. Army Corps of Engineers' regulatory demands that the owner cease filling these freshwater wetlands violates applicable law. The court holds that the owner failed to comply with the U.S. Environmental Protection Agency's administrative order requiring the owner to restore the disturbed wetlands on one of the lots. The court enjoins the owner from discharging additional fill material into the property, and orders the owner to remove the deposited fill material.

Counsel for Plaintiff
Martin McDermott
Environmental and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
James Mattson
Mattson & Tobin
First St. Bank Bldg., Key Largo FL 33037
(305) 852-3388