ELR Citation: ELR 21107
No(s). G-90-276 (S.D. Tex. Mar 31, 1993)

The court holds that a landowner who filled unique and fragile coastal wetlands on his property in willful, deliberate, and knowing violation of the Federal Water Pollution Control Act (FWPCA) and the Rivers and Harbors Act must completely restore the wetland, remediate the damage caused by the lost use of the wetland, and perform steps to undo the damage to the FWPCA §404 permit program from his open and notorious permit violations and disregard for federal cease and desist orders. The court previously granted summary judgment against the landowner and his contractor on the issue of liability, and the case proceeded to trial on remedy and civil penalties only.

The court, in exhaustively reviewing the factual circumstances of the landowner's dealings with the federal agencies, finds that the landowner's attitude was that he owned the piece of coastal property, could do whatever he pleased with it, and did not need anybody's permission to put a house on it, irrespective of statutory and regulatory prohibitions to the contrary, of which he had actual notice. Specifically, the court finds that the defendant performed substantial elevation work on his coastal marsh property, moved a house onto the property, constructed a concrete deck, concrete sidewalks, and a shell driveway, and added sodded grass, a substantial septic system, and additional fill. All of this work was done without permits from the U.S. Corps of Engineers (Corps) or the U.S. Environmental Protection Agency (EPA), in the face confrontations and dealings with the agencies regarding the need to obtain permits for such activities. The court concludes that the landowner simply disregarded the process and numerous oral and written warnings from both the Corps and EPA to terminate his activities, and that he has no equities to mitigate his liability. The court also finds that the landowner's fill-material contractor was deficient in his exercise of reasonable care in determining the propriety of the permit the landowner alleged he possessed for conducting fill activities on his property.

The court holds that the landowner must restore the wetland he filled, because FWPCA §309(b) imposes a mandatory duty to restore an intentionally filled wetland, absent equities. The court holds, however, that the fill contractor has some equities and will not be responsible for any fill removal from the site. His equities relate to his forthright and direct responsiveness to the court, and his reliance on the landowner's express claims that all the necessary permits had been obtained.

The court orders the fill contractor to pay a civil penalty of $900, representing one-half of what he was paid for 36 loads of fill delivered and dumped on the landowner's property. The court orders the landowner to pay $350 per month to create a fund for the site restoration and as payment of a civil penalty for a period of not less than eight, nor more than 12 years, to be managed by a trustee. The payment is part of his obligation to restore the filled wetlands, not a substitute for that obligation. The court orders the landowner to immediately prepare a work plan to restore the filled wetlands, except those directly under the illegally placed house, and plans for revegetating the restored wetland. Completion of the initial portion of the plan must be completed within seven months of entry of the court's order. The court orders the landowner to disconnect his septic system, remove the associated septic tanks, and use other, lawful means to dispose of waste from his house, in conformity with local sanitation ordinances and/or codes. The court further orders the landowner to erect at his own cost a 10-foot by 20-foot billboard across the street from his illegally filled property containing court-ordered language stating that the landowner is removing illegal fill material at his own expense as ordered by the court, for failing to obtain the requisite permits before filling in wetlands. Finally, the court orders that the landowner may temporarily use the house solely to accommodate him with a domicile during his advancing years, with removal of the house and final wetlands restoration on his death by his estate, or by any successors or assigns accepting an interest in the site.

Counsel for Plaintiff
Carl Strass
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
A.D. Downer
Wesley & Downer
1536 Texas Ave., Texas City TX 77590
(409) 945-9555