ELR Citation: ELR 20005
No(s). 87-100034-Civ-King (S.D. Fla. Aug 10, 1989)

The court holds that developers who partially filled a wetlands site in violation of the Federal Water Pollution Control Act (FWPCA) must restore the site to its natural state and either pay a $250,000 civil penalty or deed the site in fee simple absolute to a charitable organization for proper maintenance. The five factors enumerated under FWPCA §309—seriousness of the violation, economic benefit resulting from the violation, history of violations, good-faith efforts to comply, and economic impact of the penalty on the violator—indicate on balance that a $250,000 civil penalty would promote specific and general deterrence. FWPCA §309 requires, however, consideration of other matters as justice may require. Thus, to protect the wetlands site and provide a pollution-free habitat for migratory birds and wildlife, justice requires the court to allow the developers to deed the site and a buffer zone to a charitable group or land trust in perpetuity.

Counsel for Plaintiff
Suzan Hill Ponzoli, Ass't U.S. Attorney
155 S. Miami Ave., Rm. 700, Miami FL 33130
(305) 536-4471

Counsel for Defendants
Kay G. Finley
Rte. 2, P.O. Box 551, Summerland Key FL 33042
(305) 745-3704