ELR Citation: ELR 20305
No(s). 81-2373-CIV-EBD (S.D. Fla. Dec 17, 1982)

The court rules that dredging and filling of Niles Channel, Florida by the propeller systems of defendants' tugboats without Army Corps of Engineers permits violated §10 of the Rivers and Harbors Act and §404 of the Federal Water Pollution Control Act (FWPCA). After obtaining the necessary Corps permits for construction of a conventional girder design replacement bridge over Niles Channel, defendants, without the knowledge of Corps or state environmental officials, changed to a segmental construction design, which required the barging of bridge segments through Florida Bay to the construction site. The court rules that while barging through Niles Channel defendants engaged in dredging without a permit in violation of §10 of the Rivers and Harbors Act. Such dredging occurred when the propeller systems of the tugboats passed over shallow bottoms, uprooting sea grasses and filling the adjacent areas with sediment. That defendants mistakenly relied upon the Florida Department of Transportation to obtain the permits does not excuse the violation. The court, after holding that tugboats are point sources and that dredge spoil, sand, and biological materials are pollutants within the meaning of the FWPCA, rules that the unpermitted activities violated §404 of the FWPCA. The court also rules that defendants' unpermitted activities in state waters violated §403.161 of the Florida Statutes. The court reserves ruling on restoration and civil penalties pending study of the restoration alternatives.

Counsel for Plaintiff
Michael J. Mitchell, Ass't U.S. Attorney
155 S. Miami Ave., Miami FL 33130
(305) 350-4471

Counsel for Defendants
James T. Hendrick
Albury, Morgan & Hendrick
P.O. Box 1117, Key West FL 33040
(305) 296-5676