ELR Citation: ELR 21091
No(s). 84-5738 (11th Cir. Oct 7, 1985)

The court rules that the dredging of a channel by the propellers of defendant's tugs during bridge construction, which caused material from the bottom to be deposited on adjacent sea grass beds, is "work" governed by §10 of the Rivers and Harbors Act and the "discharge of a pollutant" governed by the Federal Water Pollution Control Act (FWPCA). The court first holds that defendant violated §10 of the Rivers and Harbors Act by dredging with its propeller system without a permit. Defendant's argument that §10 requires a planned, intentional construction or undertaking before a permit is required is not supported by statutory language or caselaw. Even if defendant's narrow interpretation were accepted, however, its activities constitute "work" within the meaning of the section since defendant knowingly created the channel and filled in the sea grass beds. The court next rules that defendant discharged polltuants in violation of the FWPCA. Defendant's tugs are point sources and the redeposited vegetation and sediment are pollutants within the meaning of the Act. Legislative history and previous caselaw support the conclusion that redepositing the sediment constitutes the "addition" of a pollutant to navigable waters within the meaning of the FWPCA. The court rules that actions under both the Rivers and Harbors Act and FWPCA are equitable in nature and therefore defendant is not entitled to a jury trial under the Seventh Amendment. Lastly, the court affirms the district court's holding that the government's suggested restoration plans were too costly, but holds that the district court erred in requiring defendants to pay $200,000 for unspecified restoration projects. The court remands for the defendant to prepare and submit a restoration plan to the district court.

[The opinion below appears at 13 ELR 20355.]

Counsel for Appellant
Thomas A. Harris
Milligan, Hooper, Harris & Barry
614 First Tennessee Bldg., Chattanooga TN 37402
(615) 266-5621

Counsel for Appellee
Michael J. Mitchell, Ass't U.S. Attorney
155 S. Miami Ave., Miami FL 33130
(305) 791-2682

David C. Shilton
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5580

Before HENDERSON and CLARK, Circuit Judges, and HOFFMAN^*, District Judge.