ELR Citation: ELR 20722
No(s). 1335-72 (D.N.J. Jun 13, 1973)

The court finds that a lagoon and lot development in Ocean City created by the defendant's dredging and filling is part of the navigable waters of the United States; and on a showing that defendant violated 33 U.S.C. §403 by operating without a Corps of Engineers permit, the court grants a permanent statutory injunction restraining all dredge, fill, and construction activities. The whole development is part of the navigable waters since it was a wetlands area before it was illegally filled in 1927. Even if the Corps has misled defendant, the United States cannot be prevented from exercising authority over navigable waters by reason of estoppel, laches, or mistake. The government has not adopted harbor lines in the area nor ratified whatever state harbor lines exist. A showing of violation of §403 is sufficient for an injunction under §406. Alternatively, however, the court rules that plaintiff is entitled to an injunction because defendant has violated §407 by discharging refuse into the Inland Waterway, committed a public nuisance in violation of federal common law, and caused irreparable injury to the environment, commerce and recreation.

Counsel for Plaintiff
Herbert J. Stern, U.S. Attorney
Z. Lance Samay, Assistant U.S. Attorney
U.S. Attorney's Office
970 Broad Street
Newark, NJ 07101

Counsel for Defendant
Joel A. Mott Jr.
230 West Avenue
Ocean City, NJ 08226