ELR Citation: ELR 20710
No(s). 73-623 (M.D. Fla. Mar 27, 1974)

In an action brought by the United States to enjoin the unauthorized depositing of sand, dirt and dredged spoil on mangrove wetlands which are periodically inundated by the tide, the court declares such filling illegal under the Federal Water Pollution Control Act Amendments of 1972 and orders the defendant to establish a mangrove preserve area. The court finds that the navigability test for federal jurisdiction over waters of the United States has been so broadened as to include virtually all waterways; the modern test for federal jurisdiction under the commerce clause is whether an activity is reasonably related to or has an effect on interstate commerce. Federal regulatory authority is thus not limited to navigable waters below the mean high water line. By evidencing in the Act a sensitivity to the value of coastal breeding grounds and a policy to control pollutants at their source, Congress demonstrated its intention to cover discharges into intertidal wetlands above the mean high water line. The fill deposits in question drain into canals that empty into Tampa Bay, and such pollution is clearly subject to federal regulation under the FWPCA. The fact that the canals are man-made does not alter the court's conclusion.

Counsel for Plaintiff
Anthony J. La Spada, Asst. U.S. Atty.
Federal Building
500 Zack St.
Tampa, FL 33602

John Vance Hughes Gen. Atty.
U.S. Environmental Protection Agency
Federal Office Bldg.
275 Peachtree, NW
Atlanta, GA 30303

Counsel for Defendants
Alan C. Sundberg
Masterson, Sundberg, & Rogers
Suite 208, The Legal Bldg.
447 Third Ave. North
St. Petersburg, FL 33701

Thomas A. Clark
John W. Boult
Carlton, Fields, Ward, Emmanuel, Smith & Cutler
20th Floor, Exchange National Bank Bldg.
601 Florida Ave.
Tampa, FL 33601