Petition for Writ of Certiorari — Banks v. United States
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1) 97-602 OCI - 2 1997
NO. __rce-OF THE CLERK
In The
Supreme Court of the United States
October Term, 1996
¢
PARKS B. BANKS,
Petitioner,
THE UNITED STATES OF AMERICA,
Respondent.
¢
On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Eleventh Circuit
¢
PETITION FOR WRIT OF CERTIORARI
+
James Stewart Mattson, Eso.
Counsel of Record
Mattson & Tosin
P.O. Box 586
Key Largo, FL 33037
(305) 852-3388
(888) 852-3388 (Toll Free)
October 2, 1997
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
3\V)
I. QUESTIONS PRESENTED FOR REVIEW
1. Consideration of a Groundwater Connection, to
Determine Whether a Wetland is “Adjacent to” Navigable
Waters of the United States, Conflicts with Decisions of
the Fifth, Seventh, and First Circuit Courts of Appeal.
2. Does the Five-Year Statute of Limitations, 28
U.S.C. § 2462, that Applies to the Government’s Actions
for Relief at Law, also Apply to the Government's Action
for Equitable Relief?
3. Can “Caprock Limestone,” Which is Exposed
Rock with Small Amounts of Soil and Vegetation on Top,
be “Wetland” Subject to the Clean Water Act?
4. Did Nationwide Permit 26 and its Predecessors
Exempt from the Clean Water Act all Filling and Dredg-
ing Activities on Land that is “Non-Tidal” and “Not Part
of a Surface Tributary System” to Navigable Waters?
VIL.
ii
Il. TABLE OF CONTENTS
Page
QUESTIONS PRESENTED FOR REVIEW..... i
yt EBs Swe os: ARR nr eeoman rs ii
pe Ree ois. ¢ 33 | een iv
BASIS FOR FURTIOUCTION . .. o.oo vksccoonckn 1
CONSTITUTIONAL PROVISIONS, STATUTES,
PRUE Ta Pa ho co och ek as. 1
SIATEMENT GF THE CASE... ............... 1
Course of Proceedings and Disposition
DW oak no Soe coke ee 1
seateenemt of the Fitts. seo cin ics so ck... 3
1. Size and Location of Locus in Quo........ 3
2. Distances From the Five Lots to Tidal
Wes i 0 ea a ea 4
3. Banks’ “Filling” Activities................ 4
4. No Surface Water Connection Between “I”
Lots and Bogie Channel.................. 5
REASONS FOR ALLOWANCE OF THE
WOURER 60d 6 ea dak eee ee ee 6
The Eleventh Circuit’s Reliance on a Ground-
water Connection to Create Clean Water Act
Jurisdiction Conflicts with Decisions of the
Fifth, Seventh, and First Circuits ............ 6
R. -Se le Sh. 8 sk ok 7
2. Legislative History and Interpretations by
Other United States Courts of Appeal.... 9
iii
TABLE OF CONTENTS - Continued
Page
3. The Facts of this Case are Common to the
Millions of Acres of Isolated Wetlands
Throughout the United States............ 13
The Statute of Limitations, 28 U.S.C.A. § 2462
Should Apply to the Government's Request for
UE I 5 Vea yap mics odd kd sy oo bulge 15
Other Reasons Raised Below................. 18
1. The Unbridled Discretion Exercised by the
Corps of Engineers and EPA in Adding
Acreage to the CWA’s Jurisdiction by
Defining “Wetlands” More Expansively
than Congress has Done................. 19
2. The Interpretation of Nationwide Permit 26
es Te enna 5 ks a a cs 21
iv
Ill. TABLE OF AUTHORITIES
CASES
3M Co. v. Browner, 17 F.3d 1453 (D.C. Cir. 1994)..... 17
Adams v. Woods, 6 U.S. (2 Cranch) 336, 2 L. Ed. 297
SU heb a kibaunsassient ics ee ee 17
Badarraco v. Commissioner, 464 U.S. 386, 104 S. Ct.
Fae, FO te. TO: 2 OAD 0G 17
Bettis v. Town of Ontario, New York, 800 F. Supp.
Rae OPIN Be REL vnpninek aching ages tec css 18
Burnett v. New York Central Ry. Co., 380 U.S. 424, 85
S. Ct. 1050, 13 L. Ed. 2d 941 (1965)............... 18
Cope v. Anderson, 331 U.S. 461, 67 S. Ct. 1340, 91 L.
Ge SOUR REMOEY ox vin ih ekhecdda ok 15, 16, 17
Exxon Corporation v. Train, 554 F.2d 1310 (5th Cir.
ERTS Car Views ys oiehide teh ccs eence kl 8, 10, 11, 12
Gilbert v. City of Cambridge, 932 F.2d 51 (1st Cir.),
cert. denied, 502 U.S. 866, 112 S. Ct. 192, 116 L.
MMs Me NORE RMPWAE Gis e008 he ons wk 16
Holmberg v. Armbrecht, 327 U.S. 392, 66 S. Ct. 582,
We Mes Os FF COON a of ibe o a okies cee, 16
Kelley v. United States, 618 F. Supp. 1103 (W.D.
WN CIN 6 5.0 85 5094 dos Se eka a 11
McDougal v. County of Imperial, 942 F.2d 668 (9th
ORE. SPORE Geo e sae ntyd cokes ceo eee is eek. 18
Merlino v. United States, 33 ERC 1262, 21 ELR
PRaee AVE NO BODE i gives sob bhcke es cback 21
Mulberry Hills Devel. Corp. v. United States, 772 F.
OPE. tare Ue. PAG. POPE). ii cee ceric ee es. 21
|
|
|
Vv
TABLE OF AUTHORITIES - Continued
Page
Nemkov v. O'Hare Chicago Corp., 592 F.2d 351 (7th
Me PUN eis eekly eh Hiscediadeai ll Ls 16
North Carolina Wildlife Fed'n v. Woodbury, 29 ERC
1941, 19 ELR 21308 (E.D.N.C. 1989)............ 16, 18
Quivira Mining Co. v. U.S. EPA, 765 F.2d 126 (10th
Cir. 1985), cert. denied, 474 U.S. 1055, 106 S. Ct.
Yate ae het Os Oe FOP LEDOB) o3 feos cick 8
Russell v. Todd, 309 U.S. 280, 60 S. Ct. 527, 84 L. Ed.
ig Bog MCC UT UTS Peo eon gee yatta 16, 17
Saffron v. Department of Navy, 561 F.2d 938 (D.C.
Cir. 1977), cert. denied, 434 U.S. 1033, 98 S. Ct.
FOS, DOL. Ba, 2d FOO (1978) 33 6 ss a 16
Schoenthal v. Irving Trust Co., 287 U.S. 92, 53 S. Ct.
a at Ne Pe BOP (AOD os oki ede ee 17
Town of Norfolk v. U.S. Army Corps of Engineers, 968
ah inn acts at, Se «4 SRE Re Te nD SOE 8, 11
United States v. Banks, 115 F.3d 916 (11th Cir. 1997)..... 3
United States v. Banks, 873 F. Supp. 650 (S.D. Fla.
PRPS EAR Gene hun iu os PENIS Wes oly ere 2
United States v. Ciampetti, 669 F. Supp. 684 (D.N_J.
lined LE ECE OE he a nee Op Mew ete frames 18
United States v. Core Lab., 759 F.2d 480 (5th Cir.
PEN eo ee USC Rh aS ECVV EA caves Conte re 18
United States v. Ellen, 961 F.2d 462 (4th Cir.), cert.
denied, 506 U.S. 875, 113 S. Ct. 217, 121 L. Ed. 2d
ALE 3 FESRINDRSEENE Sic ty BGI CUM INE Teoh Sah Seg 21
United States v. GAF Corp., 389 F. Supp. 1379 (S.D.
WO MOAT ad i ates cos cate Gk ek 11
vi
TABLE OF AUTHORITIES - Continued
Page
United States v. Hobbs, 736 F. Supp. 1406 (E.D. Va.
SOUPS 4658 basins vo PONTE bse ERX S 10 So he Re hss 16
United States v. Mayo, 26 F. Cas. 1230 (C.C.D. Mass.
MMOMN A 6a Nok MR OHERDERVER SS CUA MOn ERR REA uae 17
United States v. Telluride Co., 884 F. Supp. 404 (D.
OM POs bs ceedcanvas sank pie tebe ono 13, 16, 17
United States v. Tilton, 705 F.2d 429 (11th Cir. 1983) ..7, 14
United States v. Windward Properties, Inc., 821 F.
Supp. 690 (N.D. Ga. 1993), abrogated, United
States v. Banks, 115 F.3d 916 (11th Cir. | Re 15
United Transp. Union v. Florida East Coast Ry., 586
OG OP RE MUM oases Poco eo 16
Village of Oconomowoc Lake v. Dayton Hudson Corp.,
24 F.3d 962 (7th Cir.), cert. denied, 115 S. Ct. 322,
SOU fs EG Se Bee 908 re RS 7, 8, 12
Washington Wilderness Coalition v. Hecla Mining
Co., Inc., 870 F. Supp. 983 (E.D. Wa. 1994) ..8, 10, 13
STATUTES
0 AE Se ASME i's os Ai dea idle he ue es, 1
SF NE FEES hy hash oko see 2
We WAS MOGs bof cvis dn £XeRR RK OLLa ee 1
Me Ra Es o> ois Sis bkek ee 15, 17
we USLA. § ISite) (9908)... SS eee 2
SP SiMe Be I a ee Se 1
a th i i
Vii
TABLE OF AUTHORITIES - Continued
Page
33 US.C.A. § 1362(7) (1986) ........................ 10
UDG BUS II ooh odio hoe 18
OrtHeER AUTHORITIES
1 Holdsworth, A History or ENGusH Law (7th Ed.
cht EET CPO OO Ry NO ALL ae Ree gn aan MR 17
Corps oF ENGINEERS WETLANDS DELINEATION MANUAL
Do ce ECE Tipe SOS aR aS 7 RIDE Ra eT Cate 20, 21
Parks, THe RAILROAD THAT DIED AT SEA, Langley
Press, Inc., Key West, FL TRUER pie hare ina 5
United States Army Corps of Engineers, Environ-
mental Protection Agency, Soil Conservation
Service, and Fish & Wildlife Service, 1989 Wer-
LANDS DELINEATION MANUAL................. 19, 20, 21
REGULATIONS
en NI I gi i bi eh 13
Oe aie ID CP eh ccckenc ccc 7
OP Buin: BH EE CISIOY ooo cones vec cece cece. 22
syle one ck od co... BURPPR EEA ARIE rs tes cree cctccrnseat 12
cy oh SEARS SRS Se on cee ae a 12
42 Fed. Reg. 37122, 37128-29 Sh . eae 14
56 Fed. Reg. 40446-80 (Aug. 14, 1991)............... 21
Viii
TABLE OF AUTHORITIES - Continued
LecIs-aTive History
118 Cong. Rec. 10666 (1972), reprinted in 1 A Lecis-
LATIVE History OF THE WaTER POLLUTION CONTROL
Act AMENDMENTs OF 1972, 589-92 (Comm. Print
SPTMAN COCA Hea dL Las Caen eeeORA dS Eee ake ew
Energy and Water Development Appropriations Act of
1992, Pub. L. No. 102-104 (August 17, 1991),
reprinted in U.S.C.C.A.N. (105 Stat.) 510........
Energy and Water Development Appropriations Act of
1993, Pub. L. No. 102-377 (October 2, 1992),
reprinted in 1992 U.S.C.C.A.N. (106 Stat.) 1315..
S. Rep. No. 414, 92d Cong., 1st Sess. 73 (1971),
1972 U.S. Code Cong. & Admin. News, pp.
3668, 3739, reprinted in 2 A Lecisvative History OF
THE WaTER Po.ttuTION Controt Act AMENDMENTS
OF 1972, 1491 (Comm. Print 1973)..............
Page
IV. BASIS FOR JURISDICTION
1. The judgment of the Circuit Court, sought to be
reviewed, was entered on July 24, 1997.
2. No motion for rehearing was filed in the Circuit
Court. An order granting an extension of time in which to
file the Petition for Writ of Certiorari was entered Sep-
tember 15, 1997, extending the time for filing this Petition
to October 2, 1997.
3. This Court has jurisdiction to review the judg-
ments of the Circuit Court of Appeal. 28 U.S.C.A.
§ 1254(1).
4. The notice requirements of Rule 29.4(b), with
respect to service on the Solicitor General, have been
complied with.
¢
V. CONSTITUTIONAL PROVISIONS, STATUTES,
AND REGULATIONS
These are set forth in the text and footnotes.
S
VI. STATEMENT OF THE CASE
A. Course of Proceedings and Disposition Below
The United States filed a Complaint December 19,
1991, pursuant to § 309 of the Clean Water Act (“CWA”),
33 U.S.C.A. § 1319 (1986). The District Court had jurisdic-
tion pursuant to 28 U.S.C.A. § 1331 (federal question) and
the CWA. The Court of Appeals had jurisdiction to
review the judgment of the District Court pursuant to 28
U.S.C.A. § 1291.
The Complaint sought civil penalties and equitable
relief (restoration) for alleged pollution of “waters of the
United States.” The offenses allegedly began March 30,
1983, and violated CWA § 301(a), 33 U.S.C.A. § 1311(a)
(1986), at five, one-acre, lots on Big Pine Key, Monroe
County, Florida. Banks moved to dismiss on two grounds.
First, the five-year statute of limitations had expired as to
pre-1988 activities. Second, Banks did not need individual
permits to fill any of the lots, as Nationwide Permit 26
and its predecessors authorized Banks’ activities. The
District Court denied the Motion. Immediately before
trial, Banks filed a motion seeking application of the
concurrent remedy doctrine to the government’s demand
for equitable relief.
The Court conducted a bench trial on liability, and
entered a Memorandum Opinion adverse to Banks in
January 1994. United States v. Banks, 873 F. Supp. 650 (S.D.
Fla. 1995). App. 16-37. The Court set the second phase for
trial and Banks re-asserted his concurrent remedy
defense. The Court conducted the second phase of the
trial. On September 6, 1995, the District Court rendered
an unpublished Order Requiring Restoration, and Imposing
Penalty and Injunctive Relief, App. 38-44, and a Final Judg-
ment in favor of the United States. App. 45-46. The Dis-
trict Court never ruled on Banks’ motions on the
concurrent remedy defense. The Court’s order requires
restoration of areas filled more than five years before the
date of filing the Complaint (December 19, 1991). On
September 15, 1995, Banks perfected his appeal in the
Court of Appeals.
me
eh eed eee eee ee
athe ee ere
The District Court stayed its restoration order as to
those lots that were filled more than five years prior to
the filing of the Complaint, until such time as the Court
of Appeals rendered a decision, which it did on June 24,
1997. United States v. Banks, 115 F.3d 916 (11th Cir. 1997).
A motion to continue the stay until this Court acts on the
instant Petition, and if granted until decided, is pending
before the District Court.
B. Statement of the Facts
1. Size and Location of Locus in Quo
Banks owns five lots on Big Pine Key, Monroe
County, Florida, the locus in quo. Lots IO, IP, IQ, IR (the
“I” lots), and QQ. He bought QQ, IR, and IQ in 1980; IO
and IP in 1988. Banks’ lots are in the center of Big Pine
Key. Defendant's Exhibit 7 (“D.E.7”) is a 1992 aerial pho-
tograph of the middle of Big Pine Key. Two reduced
copies of D.E.7 are reproduced at App. 47 and App. 48. In
the first reduced photo, App. 47, the “I” lots are outlined
in yellow. In the second photo, App. 48, the five lots are
barely visible, outlined with a dark marker. Landmarks
and wetland lines are also noted in yellow. The water
west of Big Pine Key is Pine Channel; east is Bogie
Channel. The two channels are navigable-in-fact.
The NW-SE road bisecting Big Pine Key, and passing
between IO-IR and QQ, is Key Deer Boulevard. App. 47,
48. The road north of IO-IR, intersecting Key Deer Boule-
vard at an angle and bisecting Big Pine Key in the east-
west direction, is Watson Boulevard.
2. Distances From the Five Lots to Tidal Waters
D.E.7 (App. 47, 48) also shows the wetland slough,
allegedly including Banks’ lots, outlined in blue by gov-
ernment witness Curtis Kruer. The slough runs approxi-
mately 1.4 mile (7,300 ft) across Big Pine Key, from Pine
Channel to Bogie Channel. The distance from the closest
of Banks’ “I” lots, to the point where the slough enters
Bogie Channel, is 0.5 mile (2,650 ft). Watson Boulevard
separates the “I” lots from Bogie Channel. The distance
from the “I” lots to Watson Boulevard is 0.2 mile (1,100
ft). The distance from Watson Boulevard to Bogie Chan-
nel is 0.3 mile (1,550 ft). Pine Channel is 0.8 mile (4,300 ft)
southwest of the “I” lots. Key Deer Boulevard (700 ft
west) separates the “I” lots from Pine Channel.
3. Banks’ “Filling” Activities
Between 1980 and 1983, Mr. Banks began improving
lots IQ and IR to build his home and a palm tree nursery.
He brought in black dirt and gravel to provide soil for
planting and to level the land in 1982-83. He planted
4,400 seed trees on IQ and IR in 1983-84. He began
construction of his home on IQ in 1985-86. After buying
IO and IP, Banks began to grow palm trees there, obtain-
ing nuts from the seed trees on IQ’and IR. He germinated
the nuts in beds of horse manure and sawdust, then
potted the seedlings in 3 and 10-gallon pots. He built a
perimeter berm of silt around lots IO and IP, and grew
seed trees in the berm. (The potted trees and berms, on IO
and IP, have been removed pursuant to the District
Court’s order.)
awl Marci
A 1981 survey shows elevations of IQ and IR as +2.08
to +2.32 ft along the north edge of IR, and +2.23 ft to
+2.55 ft along the south edge of IQ. On the government's
1993 survey, IQ and IR had post-fill elevations between
+2.4 and +3.3 ft. The post-fill elevations of IQ and IR are
only 3.5 to 10 inches higher than in 1981.
4. No Surface Water Connection Between “I” Lots
and Bogie Channel
Watson Boulevard is north of the “I” lots, physically
separating them from Bogie Channel. Key Deer Boule-
vard is west of the “I” lots, physically separating them
from Pine Channel. The government maintains the “I”
lots are “adjacent” to Bogie Channel, but does not con-
tend they are “adjacent” to Pine Channel. There are no
culverts or openings that allow surface water to flow
through the Watson Boulevard roadbed. The road is not
low enough to permit surface water to flow across the
asphalt under normal conditions. Watson Boulevard is at
least two ft above the surrounding grade. The roadbed is
42 ft wide at its base, and the paved roadway is 22 ft
wide. The road is on the former Florida East Coast Rail-
way grade. Construction of the original railroad bed
hydrologically isolated the wetland vegetation south of
Watson Boulevard. Watson Boulevard, and the railroad
before it, cut off any surface water connection between
the “I” lots that might have existed before construction of
the railroad (between 1910 and 1912).1 The government
concedes there is no surface water connection between
* Construction began on Big Pine in 1910, and the first train
rolled into Key West in 1912. Parks, THe RAmRoAD THAT DiED aT
Sea, Langley Press, Inc., Key West, FL (1968).
6
the “I” lots and Bogie Channel. The government alleges
there is a subsurface water connection under Watson
Boulevard. Dr. Kruczynski testified:
... the surface water connection would only be
available if there were two feet of water that
could cross the roadway. However, there is a
subsurface connection through the very porous
Miami oolite. In my opinion this is an adjacent
wetland which has been bisected by a man-
made structure which does not disrupt the flow
of subsurface water underneath that roadway.
The government did not do any testing to prove the
existence of a subsurface connection, but Banks does not
contest its existence. The government did not allege, or
offer evidence to show, that any “pollutants” from Banks’
Properties enter the groundwater of Big Pine Key, or
emerge from the groundwater and enter the navigable
waters of Bogie Channel. The government’s case was
based entirely on a subsurface “connection.”
+
VII. REASONS FOR ALLOWANCE OF THE WRIT
A. The Eleventh Circuit’s Reliance on a Groundwater
Connection to Create Clean Water Act Jurisdiction
Conflicts with Decisions of the Fifth, Seventh, and
First Circuits.
Even if Banks’ “I” lots are wetlands, a surface-water-
to-groundwater-to-surface-water connection is insuffi-
cient to create CWA jurisdiction. Assuming Banks’ lots are
wetlands, they have been cut off from surface flow into
the Gulf of Mexico for 85 years. The District Court found
7
that an underground hydrological connection, under Wat-
son Boulevard, “connects” the “I” lots to Bogie Channel,
and based CWA jurisdiction primarily on that connection.
The Eleventh Circuit affirmed, relying primarily on
United States v. Tilton, 705 F.2d 429 (11th Cir. 1983). The
courts below also relied on an “ecological connection”
which does not appear anywhere in the CWA, and has
been rejected by the First Circuit in Village of Oconomowoc
Lake v. Dayton Hudson Corp., 24 F.3d 962 (7th Cir.), cert.
denied, 115 S. Ct. 322, 130 L. Ed. 2d 282 (1994). The courts
below also relied, in part, on overwashing of Watson
Boulevard during hurricanes. The Corps’ § 404 regula-
tions prohibit the use of hurricane tide levels when deter-
mining the limits of tidal waters.2 Common sense
suggests a similar rationale must be applied to this fac-
tual situation. Otherwise, every major hurricane to hit the
United States would create additional CWA jurisdiction
where none had existed before.
1. Inter-Circuit Conflict
Five Circuit Courts of Appeal (1st, 5th, 7th, 10th, and
11th) have reached some decision on whether groundwa-
ter may be regulated under the CWA. The Eleventh Cir-
cuit, in this case and United States v. Tilton, supra,
? The [high tide] line encompasses spring high tides and
other high tides that occur with periodic frequency but does not
include storm surges in which there is a departure from the
normal or predicted reach of the tide due to the piling up of
water against a coast by strong winds such as those
accompanying a hurricane or other intense storm. 33 C.ER.
§ 328.3(d) (1986).
a
considers “ground water-connected-to-surface-water” a
per se? subject of CWA jurisdiction. CWA jurisdiction over
groundwater in general was first rejected by the Fifth
Circuit in 1977, based on the legislative history of the
CWA. Exxon Corporation v. Train, 554 F.2d 1310 (5th Cir.
1977) (CWA does not give federal agencies authority to
regulate groundwater). Relying on Exxon and the legisla-
tive history, the Seventh Circuit completely rejected
“groundwater-connected-to-surface-water” CWA juris-
diction in Village of Oconomowoc Lake v. Dayton Hudson
Corp., supra, at 24 F.3d 963 (7th Cir.) (“Even though
ground water eventually reaches Streams, lakes, and
oceans, .. . , it is not part of the “ ‘waters of the United
States’.”). Furthermore, the First Circuit, in Town of Nor-
folk v. U.S. Army Corps of Engineers, 968 F.2d 1438 (1st Cir.
1992), concluded the Corps did not have to consider the
impacts of pollutants on groundwaters, in issuing a CWA
permit, because groundwaters are not subject to CWA
jurisdiction.
The 10th Circuit relied on a “groundwater-to-surface-
water” connection as a partial basis for CWA jurisdiction
in Quivira Mining Co. v. U.S. EPA, 765 F.2d 126 (10t' Cir.
1985) (EPA has CWA jurisdiction over discharges into
creeks that exhibit occasional surface water connections
to navigable waters during and after heavy rainfalls, and
> By per se, Petitioner means there is no requirement the
government prove that pollution from the isolated source is
actually reaching the surface water to which the groundwater is
connected. See Washington Wilderness Coalition v. Hecla Mining
Co., Inc., 870 F. Supp. 983 (E.D. Wa. 1994) (plaintiff must allege
and prove “pollutant” is carried from isolated site, via
groundwater, to surface water).
9
have continuous groundwater connections to the same
navigable waters), cert. denied, 474 US. 1055, 106 S. Ct.
791, 88 L. Ed. 2d 769 (1986).
The courts below concluded that Banks’ “I” lots are
part of a “continuous wetland” that would stretch to
Bogie Channel if it were not bisected by Watson Boule-
vard. The government conceded that surface water from
Banks’ lots could only get to Bogie Channel if it perco-
lated down into the groundwater table, and then
migrated under Watson Boulevard, and then flowing into
Bogie Channel once it reached the other side. App. 32-34.
If this set of facts leads to CWA jurisdiction, then
every damp spot in the entire Southeastern United States,
the Eastern Seaboard, the Great Lakes States, states bor-
dering navigable rivers, and the states bordering the Gulf
of Mexico and Pacific Ocean, is a wetland “adjacent to”
navigable waters of the United States.
2. Legislative History and Interpretations by
Other United States Courts of Appeal
The act prohibited by § 301(a) of the CWA is “dis-
charge of any pollutant to navigable waters.” The phrase
is defined, for purposes of the CWA, in § 502(12) (33
U.S.C.A. § 1362(12) (1986)), as:
The term “discharge of a pollutant” and the
term “discharge of pollutants” each means
. any addition of any pollutant to navigable
waters from any point source. .
10
The term “navigable waters” is defined in § 502(7) of the
CWA (33 U.S.C.A. § 1362(7) (1986)) as “the waters of the
United States, including the territorial seas.”
When the CWA was being debated in Congress in
1972, an amendment was offered on the House floor by
Congressman Aspin, that would have changed the Act’s
definition of “discharge of a pollutant” to include “any
addition of any pollutant to groundwaters from any point
source.” The Aspin amendment did not pass. 118 Cong.
Rec. 10666 (1972), reprinted in 1 A Lecistattve History OF
THE WaTER PoLiuTION Controt Act AMENDMENTS OF 1972,
589-92 (Comm. Print 1973) (hereinafter “LEG. HIST.”).
The report of the Senate Committee on Public Works, that
accompanied the bill in that chamber, reads:
Several bills pending before the Committee pro-
vided authority to establish Federally approved
standards for groundwaters which permeate
rock, soil, and other subsurface formations.
Because the jurisdiction regarding groundwaters
is so complex and varied from State to State, the
Committee did not adopt this recommendation.
S. Rep. No. 414, 92d Cong., 1st Sess. 73 (1971), 1972 U.S.
Code Cong. & Admin. News, PP- 3668, 3739, reprinted in 2
LEG. HIST. 1491.4 The Fifth Circuit, in Exxon Corporation
v. Train, supra, concluded:
- . we have examined the structure of the Act
and its legislative history in an attempt to dis-
cern the congressional intent with regard to the
* See also Washington Wilderness Coalition v. Hecla Mining
Co., Inc., supra, fn. 3, 870 F. Supp. 989-90.
Sat
11
question here. What we have found belies an inten-
tion to impose direct federal control over any phase
of pollution of subsurface waters.
554 F.2d at 1322.5 See also United States v. GAF Corp., 389 F.
‘Supp. 1379 (S.D. Tex. 1975) (injecting wastes into ground-
water not regulated by FWPCA);¢ Kelley v. United States,
618 F. Supp. 1103 (W.D. Mich. 1985).
In Town of Norfolk v. U.S. Army Corps of Engineers, 968
F.2d 1438 (1st Cir. 1992), the First Circuit followed Exxon
v. Train, United States v. GAF Corp., and Kelley v. United
States, supra. The Norfolk panel concluded that, although
the definition does not indicate whether groundwaters
are “waters of the United States,” the Army Corps of
Engineers has interpreted the definition to apply only to
surface waters. The First Circuit added another basis to
its rationale, that groundwaters are not part of the
“aquatic ecosystem.” Quoting the District Court, the Nor-
folk panel adopted the following language.
° The Fifth Circuit left a window open to be decided
another day.
** * EPA has not argued that the wastes disposed of
into wells here do, or might, “migrate” from
groundwaters back into surface waters that
concededly are within its regulatory jurisdiction.
** * We mean to express no opinion on what the result
would be if that were the state, of facts.
Exxon v. Train, 554 F.2d at 1311 n.1. The government has not
made these allegations in the instant case.
© The 1972 Act was called the Federal Water Pollution
Control Act Amendments of 1972 (“FWPCA”). The Act was re-
named the Clean Water Act (“CWA”) in 1977.
12
The plain language of the [EPA] Guidelines
clearly constrains the [CWA permitting] alterna-
tives analysis . . . to effects on the aquatic eco-
system. “Aquatic ecosystem,” in turn, is defined
as “waters of the United States, including wet-
lands, that serve as habitat for interrelated and
interacting communities and populations of
plants and animals.” 40 C.F.R. § 230.3(c) The
Corps’ determination that groundwater sources
are not aquatic ecosystems was clearly a reason-
able interpretation of [40 C.F.R.] § 230.10(a), as
[groundwater sources] cannot be said to “serve
as habitat for interrelated and interacting com-
munities and populations of plants and ani-
mals.” While the impact on groundwater is
certainly an “environmental consequence,” the
alternatives analysis is limited to comparison of
effects on the aquatic ecosystem.
968 F.2d at 1450. In a 1994 Seventh Circuit decision,
Village of Oconomowoc Lake v. Dayton Hudson Corp., supra, a
municipality tried to prevent the construction of a ware-
house. The village alleged rainwater runoff from the
warehouse’s parking lot would seep into the ground at
the facility’s 6-acre stormwater retention pond, and pol-
lute groundwater, and the polluted groundwater would
eventually enter surface waters. The Seventh Circuit
panel, relying on Exxon v. Train, supra, and answering the
question the Exxon panel left “for another day,” rejected
the village’s theory.
Some water from the pond evaporates into the
air, and the rest seeps into the ground. Even
though ground water eventually reaches streams,
lakes, and oceans, the court held, it is not part of
the “waters of the United States”.
24 £.3d at 963 (emphasis added).
EE
13
3. The Facts of this Case are Common to the Mil-
lions of Acres of Isolated Wetlands Throughout
the United States
The government alleged Banks discharged “pollu-
tants” on the surface of his property, not into groundwa-
ter, nor by way of groundwater into Bogie and Pine
Channels. The government did not allege, or prove, that
the pollutants deposited on Banks’ lands entered the
groundwater, passed under Watson Boulevard, re-
emerged on the other side of Watson Boulevard, and
ultimately entered Bogie Channel, over 1/2 mile away.
This ultimate issue was not addressed, as suggested in
Washington Wilderness Coalition v. Hecla Mining Co., Inc.,
supra, fn. 3.
The Corps’ rules define “adjacent” in terms of prox-
imity.” Yet the decision below depends on everything but
7 33 C.F.R. § 328.3(c) reads:
The term “adjacent” means bordering, contiguous, or
neighboring. Wetlands separated from other waters
of the United States by man-made dikes or barriers,
natural river berms, beach dunes and the like are
“adjacent wetlands.”
The definition was a response to concerns over vagueness of the
1975 terms, “contiguous” and “adjacent.” In the preface to its
rule, the Corps wrote:
We have defined the term “adjacent” to mean
“bordering, contiguous, or neighboring.” The term
would include wetlands that directly connect to other
waters of the United States, or that are in reasonable
proximity to these waters but physically separated from
14
proximity; i.e., wading birds, Key deer, historical condi-
tions, flooding during hurricanes, and groundwater con-
nections.’ Banks’ lots are more than '/2 mile from the
navigable waters the government argues they are “adja-
cent” to. In United States v. Tilton, 705 F.2d 429 (11th Cir.
1983), a wetland was separated from a navigable river by
a 30 ft river berm. The Eleventh Circuit’s Tilton panel
noted the possibility of a serious problem, when it stated
the following.
It may be that the extravagant reach of the regula-
tions would raise serious problems if literally
applied under some hypothetical situations.
Such problems, however, are not before the
court under the present facts.
705 F.2d 431. In the case for which Certiorari is sought,
the barrier is not a river berm, it is an 85-year old road-
way that completely blocks surface water flow (except
them by man-made dikes or barriers, natural river
berms, beach dunes, and similar obstructions.
42 Fed. Reg. 37122, 37128-29 (July 19, 1977) (emphasis added).
8 The government's wetland expert, Dr. Kruczynski,
described what he considers to be the four criteria for
“adjacency.” He stated in his field report that an “adjacent
wetland” should be:
1. Reasonably close to the water to which it is
adjacent;
2. Historically connected to those waters; and
3. Part of the same biological system (wading bird
usage was noted).
4. Potential exists for flooding from waters to
which it is adjacent.
Admin. Rec: 114 at 5.
15
possibly in a direct hit by a major hurricane). Banks’ lots
are not 30 feet from navigable waters, they are at least
2,650 feet ('/2 mile) from the water and 1,100 ft inland
from the road.
B. The Statute of Limitations, 28 U.S.C.A. § 2462,
Should Apply to the Government's Request for
Equitable Relief
The government did not seek civil penalties for
Banks’ alleged filling activities before 1990, because it
was barred from doing so by the Statute of Limitations at
28 U.S.C.A. § 2462. The trial court ordered Banks to
remove fill from Lots IG, IR, and QQ that he placed there
more than five years before the filing of this action. Banks
argued the statute of limitations should apply to equita-
ble remedies under the CWA, under the concurrent rem-
edy doc.rine. The leading case is Cope v. Anderson, 331
U.S. 461, 464, 67 S. Ct. 1340, 91 L. Ed. 1602 (1947). Banks
directs the Court to the opinions in United States v. Wind-
ward Properties, Inc., 821 F. Supp. 690 (N.D. Ga. 1993),
abrogated, United States v. Banks, 115 F.3d 916, 919 (11th
Cir. 1997), and United States v. Telluride Co., 884 F. Supp.
404 (D. Co. 1995), for support.
The statute of limitations applies to both civil penal-
ties and injunctive relief. The Windward court held:
Plaintiff argues that, because [§ 2462] applies
only to actions “for the enforcement of any civil
fine, penalty or forfeiture,” it does not apply to
requests for injunctive relief. The Court con-
cludes, however, that the weight of authority
dictates a contrary result. The majority of courts
16
that have considered the question, including the
Supreme Court, have held that when legal and equi-
table relief are available concurrently (i.e., when an
action at law or equity could be brought on the same
facts), “equity will withhold its relief . . . where the
applicable statute of limitations would bar the con-
current legal remedy”, Cope v. Anderson, 331 U.S.
461, 464, 67 S. Ct. 1340 (1947). See also Russell v.
Todd, 309 U.S. 280, 289, 60 S. Ct. 527[, 84 L. Ed.
754] (1940); United Transp. Union v. Florida East
Coast Ry., 586 F.2d 520, 524 (5th Cir. 1978) (when
“both legal and equitable relief [are] sought-
... the statute of limitations bars both”); Gilbert
v. City of Cambridge, 932 F.2d 51 (1st Cir.) cert.
denied, [502 U:S. 866,] 112 S. Ct. 192], 116 L. Ed.
2d 153] (1991) (“It is well settled . . . that where
legal and equitable claims coexist, equitable
remedies will be withheld if an applicable stat-
ute of limitations bars the concurrent legal rem-
edy.”); Nemkov v. O’Hare Chicago Corp., 592 F.2d
351, 354-55 (7th Cir. 1979); Saffron v. Department
of Navy, 561 F.2d 938, 942-43 (D.C. Cir. 1977),
cert. denied, 434 U.S. 1033, 98 S. Ct. 765], 54 L.
Ed. 2d 780] (1978).
In United States v. Telluride Co., supra, the court
reached the same conclusion. The Telluride court rejected
the contrary position of the court in United States v. Hobbs,
736 F. Supp. 1406 (E.D. Va. 1990) As to Hobbs, the Telluride
court stated:
The Hobbs court relied solely on cases in which
an equitable remedy was the only remedy at
issue. See, e.g. [Holmberg v. Armbrecht, 327 U.S.
392, 66 S. Ct. 582, 90 L. Ed. 743 (1946)]; [North
Carolina Wildlife Fed’n v. Woodbury, 29 ERC 1941,
19 ELR 21308 (E.D.N.C. 1989)]. It made no refer-
ence to cases in which legal and equitable relief
|
|
17
are sought in the same complaint and did not
cite the leading case of Cope v. Anderson, 331 U.S.
461, 464, 67 S. Ct. 1340, 91 L. Ed. 2d 1602 (1947).
The Telluride court's holding is consistent with the
ancient preference for money damages over specific,
equitable relief. See, €.8-, 1 Holdsworth, A History of
ENGuisH Law, 475 (7th Ed. 1956); Schoenthal v. Irving Trust
Co., 287 U.S. 92, 94, 53 S. Ct. 50, 77 L. Ed. 185 (1932).
“[Equity] thus Stays its hand in aid of legal right” which
is barred by the statute of limitations. Russell v. Todd, 309
U.S. at 289.
In a recent decision, the D.C. Circuit analyzed § 2462
in a TSCA action. 3M Co. v. Browner, 17 F.3d 1453 (D.C.
Cir. 1994). The court weighed the role of statutes of
limitations generally. It noted: “in a country where not
€ven treason can be prosecuted, after a lapse of three
years, it could scarcely be supposed, that an individual
would remain forever liable.” [d. at 1457, quoting Adams
v. Woods, 6 U.S. (2 Cranch) 336, 2 L. Ed. 297 (1805). See also
United States v. Mayo, 26 F. Cas. 1230, 1231 (C.C.D. Mass.
1813) (“it would be utterly repugnant to the genius of our
laws to allow such Prosecutions a perpetuity of exis-
tence”). When Congress intended to make an exception to
§ 2462 by Providing a longer period before the statute
runs, or by tolling the statute, it has clearly expressed
that intent. Badarraco v. Commissioner, 464 U.S. 386, 104 S.
Ct. 756, 78 L. Ed. 2d 549 (1984) (collecting fraudulently
withheld taxes not subject to § 2462).
Moreover, there is no principled argument that can
support choosing the policies underlying the CWA over
the centuries-old policies that underlie statutes of limita-
tions. In short, any other “interpretation of § 2462
18
—— advanced by the government is in derogation of the right
to be free from stale claims, which comes in time to
prevail over the right to prosecute them.” United States v.
Core Lab., 759 F.2d 480, 483 (5th Cir. 1985), citing Burnett v.
New York Central Ry. Co., 380 U.S. 424, 428, 85 S. Ct. 1050,
13 L. Ed. 2d 941 (1965).
Some courts have gone beyond the language of the
CWA to find “continuing violations.” This was done
either in the context of calculating civil penalties® or for
purposes of conferring federal question jurisdiction in
citizen suits for injunctive relief..° When the filling of
wetlands has ceased before the filing of a complaint,
however, courts have found no “continuing violation.”
Bettis v. Town of Ontario, New York, 800 F. Supp. 1113,
1118-19 (W.D.N.Y. 1992) (interpreting 33 U.S.C.A. § 1365
(1986)). As the Ninth Circuit recently found, the “continu-
ing violation doctrine is of no assistance or applicability,
because mere ‘continuing impact from past violations is
not actionable. Continuing violations are.’ ” McDougal v.
County of Imperial, 942 F.2d 668, 675 (9th Cir. 1991) (reject-
ing argument that County’s taking of their property was
a continuing violation of their civil rights).
C. Other Reasons Raised Below
Banks raised two other grounds for dismissal of the
CWA action against him. They were not briefed in this
Petition for Certiorari because they do not appear to meet
9° United States v. Ciampetti, 669 F. Supp. 684 (D.N.J. 1987).
'© North Carolina Wildlife Fed'n v. Woodbury, 29 ERC 1941
(E.D.N.C. 1989).
19
the criteria set out in this Court’s Rule 10. Those issues
are mentioned briefly below in the event this Court con-
siders them important enough to be considered in the
context of the balance of this case.
1. The Unbridled Discretion Exercised by the
Corps of Engineers and EPA in Adding Acreage
to the CWA’s Jurisdiction by Defining “Wet-
lands” More Expansively than Congress has
Done
In 1980, all five of Banks’ lots were 100% exposed,
solid limestone rock (known as “caprock,” or “caprock
limestone”), with small pockets of organic material that
Supports some vegetation. To be a CWA wetland, it must
meet a 3-part test; wetland hydrology, wetland vegeta-
tion, and hydric soils. The government's expert described
the lots as having “little or no soils on the property.” The
1989 WertLanps DELINEATION Manuat, from which the
notion of “caprock wetlands” originated,!1 was rejected
The 1989 Manua. identified 13 “Problem Area
Wetlands.” One category was “caprock limestone wetlands.”
Caprock Limestone Wetlands — These wetlands are
found in the Everglades region of southern Florida.
The substrate, commonly called “rockland,” is
composed mainly of Miami oolite or Tamiami
limestone with a very thin covering of
unconsolidated soil material in Places. * * * * Hydric
soils may not be present in many places in these
wetlands, since substrate (consolidated material)
predominates and little or no soil (unconsolidated
material) may exist. Despite the lack of hydric soils in
Places, these areas are wetlands because they meet
the wetland hydrology criterion.
20
by Congress in 1991 as an abuse of CWA permitting
authority, and the 1987 Manuat substituted in its place.}2
Yet, the government and the courts below concluded the
lots were “caprock wetlands.”
12 On August 17, 1991, President Bush Signed the
prohibition on using the 1989 Manuat into law. It reads:
None of the funds in this Act shall be used to identify
or delineate any land as a “water of the United States”
under the * * * (1989 MANUAL) or any subsequent
manual not adopted in accordance with the
requirements for notice and public comment of the
rule-making process of the Administrative Procedure
Act.
In addition, regarding Corps of Engineers ongoing
enforcement actions and permit applications
involving lands which the Corps or EPA has
delineated as waters of the United States under the
1989 Manuat, and which have not yet been completed
on the date of enactment of this Act, the landowner or
permit applicant shall have the option to elect a new
delineation under the Corps 1987 WetTLanp
DELINEATION MANUAL, or completion of the process or
enforcement action based on the 1989 MANUAL
delineation * * *
Energy and Water Development Appropriations Act of 1992, Pub. L.
No. 102-104 (August 17, 1991), reprinted in U.S.C.C.A.N. (105
Stat.) 510, 518.
Congress made its position semi-permanent in the
1993 appropriations bill. Energy and Water
Development Appropriations Act of 1993, Pub. L. No.
102-377 (October 2, 1992), reprinted in 1992
U.S.C.C.A.N. (106 Stat.) 1315, 1324 (Furthermore, the
Corps of Engineers will continue to use the Corps of
Engineers 1987 MANUAL, as it has since August 17,
1991, until a final wetlands delineation manual is
adopted.).
21
There was a flurry of judicial activity over the 1989
Manuat. See, e.g., United States v. Ellen, 961 F.2d 462 (4th
Cir.), cert. denied, 506 U.S. 875, 113 S. Ct. 217, 121 L. Ed. 2d
155 (1992) (1989 Manuat created significant increase in
lands identified as wetlands as compared with 1987
Manuat); Merlino v. United States, 33 ERC 1262, 21 ELR
21322 (W.D. Wa. 1991) (plaintiffs’ claim 1989 Manuav
resulted in substantial enlargement of § 404 jurisdiction);
Mulberry Hills Devel. Corp. v. United States, 772 F. Supp.
1553 (D. Md. 1991) (plaintiff said 1989 Manuat desig-
nated 21 acres wetlands, 1987 MANUAL only 14). The 1989
Manuat specifically states “caprock limestone wetlands”
do not meet the mandatory 3-part test of the Corps’ 1987
Manuat. In addition, EPA and the Corps deleted the “cap-
rock limestone wetland” category in a proposed rule,
published in 1991, that may yet amend the 1989 Manuat.
56 Fed. Reg. 40446-80 (Aug. 14, 1991).
2. The Interpretation of Nationwide Permit 26 and
its Predecessors
Banks argued that, from July 22, 1982, to January 21,
1992, Nationwide Permits (“NWPs”) in the Corps’ regula-
tions allowed the placement of dredged or fill materials
onto certain waters of the United States, in areas from 1
acre to thousands of acres, without an individual § 404
permit. Banks’ lands, even if they were waters of the
United States, were always eligible for these NWPs. The
two criteria that had to be met were (a) that the “waters”
be non-tidal, and (b) that they “not be part of a surface
tributary system to interstate or navigable waters.” The
22
government's expert conceded there are no “surface trib-
utary systems” in the Keys. Therefore, the subject lands
from 1982-92 were “not part of a surface tributary system
to interstate waters or navigable waters of the United
States.” Furthermore, there was no contention that Banks’
lands contain:
- . Waters that rise and fall in a predictable and
measurable rhythm or cycle due to the gravita-
tional pulls of the moon and sun.
33 C.F.R. § 328.3(f) (1995) (definition of “tidal waters”).
All five lots are “non-tidal.” Therefore, Banks’ lands were
exempt from CWA permitting requirements.
Respectfully submitted,
James Stewart Mattson, Esq.
Counsel of Record
Mattson & Tosin
P.O. Box 586
Key Largo, FL 33037
(305) 852-3388
(888) 852-3388 (Toll Free)
SMR BA
i
RINNE Skea ate
Be op
VIL.
App. i
TABLE OF CONTENTS
Page
United States Court of Appeals, 11th Cir-
cuit, Judgment, June 24, 1997...........__. App. 1
United States Court of Appeals, 11th Cir-
cuit, Opinion, June "2 OER eee App. 3
United States District Court, SD, Fla, Mem-
orandum Opinion, January 13, 1995...... App. 16
United States District Court, SD Fla, Final
Judgment, September 1, 1995 .........__. App. 38
United States District Court, SD Fla, Order
Requiring Restoration, and Imposing Pen-
alty and Injunctive Relief, September 1,
sea ae DO ae ea ae App. 40
App. 1
UNITED STATES COURT OF APPEALS
For THE ELeveNTH Circurt
No. 95-5167
D.C. Docket No. 91-10107-CIV
UNITED STATES OF AMERICA,
Plaintiff-Counter-
defendant, Appellee,
versus
PARK [sic] B. BANKS,
Defendant-Counter-
claimant, Appellant.
Appeal from the United States District Court
for the Southern District of Florida
(Filed Jun. 24, 1997)
Before TJOFLAT and EDMONDSON, Circuit Judges, and
O’NEILL*, Senior Circuit Judge.
JUDGMENT
This cause came to be heard on the transcript of the
record from the United States District Court for the
Southern District of Florida, and was argued by counsel;
* Honorable Thomas N. O’Neill, Jr., Senior U. S. District
Judge for the Eastern District of Pennsylvania, sitting by
designation.
App. 2
UPON CONSIDERATION WHEREOF, it is now
hereby ordered and adjudged by this Court that the judg-
ment of the said District Court in this cause be and the
same is hereby AFFIRMED;
It is further ordered that defendant-appellant pay
plaintiff-appellee the costs on appeal to be taxed by the
Clerk of this Court.
Entered: June 24, 1997
For the Court: Maguel J. Cortez, Clerk
By: /s/ Matt Davidson
Deputy Clerk
ISSUED AS MANDATE: 8/18/97
App. 3
UNITED STATES of America,
Plaintiff-Counter-Defendant-Appellee,
Vv.
Park [sic] B. BANKS,
Defendant-Counter-Claimant-Appellant.
No. 95-5167,
United States Court of Appeals,
Eleventh Circuit.
June 24, 1997.
Government brought enforcement action against
landowner under Clean Water Act (CWA), requesting that
he be enjoined from future discharges of dredged or fill
materials into wetlands on his property, that he be
required to restore wetlands to their undisturbed condi-
tion, and that he be required to pay civil penalty. The
United States District Court for the Southern District of
Florida, No. 91-10107-CIV-JLK, James Lawrence King, J.,
held that landowner violated CWA. Landowner appealed.
The Court of Appeals, Edmondson, Circuit Judge, held
that: (1) abrogating Windward Properties, Inc., 821 F.Supp.
690, government’s claims for equitable relief were not
subject to five-year statute of limitations; (2) evidence
supported finding that landowner’s lots were “adjacent
wetlands”; and, (3) landowner failed to meet his burden
of showing that any of his discharge activities onto wet-
lands were permissible under nationwide permit 26
(NWP 26).
Affirmed.
App. 4
Appeal from the United States District Court for the
Southern District of Florida.
Before TJOFLAT and EDMONDSON, Circuit Judges,
and O’NEILL*, Senior District Judge.
EDMONDSON, Circuit Judge:
Defendant-Appellant Parks B. Banks appeals the dis-
trict court’s holding that he violated the Clean Water Act
(“CWA”) by discharging dredged material and fill onto
wetlands. Because we find that the district court’s appli-
cation of the CWA to Banks’ lands involved no clear
error, we affirm.
Facts and Background
Section 404(a) of the CWA, 33 U.S.C. § 1344(a), autho-
rizes the Secretary of the Army, acting through the Corps
of Engineers (“Corps”), to issue permits for discharges of
“dredged or fill material” into waters of the United
States. The Corps may authorize these discharges
through both individual permits and general, regulatory
permits. |
In 1980, Banks purchased three lots — lots QQ, IQ and
IR - in Big Pine Key in Florida. Banks began bulldozing
lots IQ and IR and covering the lots with fill. Filling
* Honorable Thomas N. O'Neill, Jr., Senior U.S. District Judge
for the Eastern District of Pennsylvania, sitting by designation.
* From 1980 through 1988, Banks purchased five lots on Big
Pine Key. Four of the lots — lots 10, IP, IQ and IR - are
contiguous, while the fifth - lot QQ - is approximately one-
fourth of a mile southeast of the other four lots. Pine Channel is
to the west of the lots, and Bogie Channel is on the east.
App. 5
continued through approximately 1983, when Banks
planted coconut trees on the filled lots and built a house
on lot IQ. In March 1983, a Corps biologist informed
Banks that parts of lots IQ and IR were wetlands and that
discharges onto those areas were unlawful without a
permit, In April 1983, the Corps issued a cease and desist
order, threatening enforcement action if Banks continued
his discharges. The order suggested that Banks apply for
an individual permit to authorize retroactively his activ-
ities. Banks applied for this “after-the-fact” permit, but
the Corps denied it in April 1984. The Corps also told
Banks that, to avoid an enforcement action, he must
negotiate a restoration plan with them. Banks continued
to discharge fill without a permit and entered into no
negotiations for a restoration plan.
In 1988, Banks purchased lots IO and IP, located just
south of lots IQ and IR. From 1988 to 1991, Banks cleared
vegetation from these new lots and prepared them for
coconut farming. During this time, Banks also added fill
to Lot QQ.
In 1990, the Corps issued four cease and desist orders
to Banks, accusing him of discharging fill into U.S. waters
without a permit despite clear notice that his conduct was
illegal. In December 1991, the government filed this suit
against Banks, requesting that the district court enjoin
future discharge of additional dredged or fill materials
into the wetlands on the property, require Banks to
restore the wetlands to their undisturbed condition
before such unlawful discharge by removing the fill and
otherwise implementing a restoration plan, and require
App. 6
Banks to pay an appropriate civil penalty.2 Banks
appealed.
Discussion
I. Statute of Limitations
Because the CWA does not specify a limitations
period for enforcement actions under § 309, 33 U.S.C.
§ 1319, the default limitations provisions of 28 U.S.C.
§ 24623 apply to the government's actions for civil fines
or penalties. The parties dispute, however, the appli-
cability of this statute of limitations to claims for equita-
ble relief.4
2 In the light of the application of the statute of limitations
to the government's claims for civil penalties, discussed below,
the United States sought civil penalties in this case only for
Banks’ filling activities in 1989 and 1990.
* Section 2462 provides in pertinent part:
Except as otherwise provided by Act of Congress, an
action, suit or proceeding for the enforcement of any
civil fine, penalty, or forfeiture, pecuniary or
otherwise, shall not be entertained unless
commenced within five years from the date when the
claim first accrued.
* The government argues that Banks waived his statute of
limitations defense for equitable relief by failing to raise it in a
responsive pleading as required by Fed.R.Civ.P. 8(c). It is true
that Banks raised the statute of limitations issue on the equitable
claims by motion the day the trial began, which would normally
waive the defense. American National Bank of Jacksonville v. FDIC,
710 F.2d 1528, 1537 (11th Cir.1983).
The government, however, neither objected nor responded
to Banks’ motion. Banks contends that the government,
therefore, consented to litigate this issue under Fed.R.Civ.P.
App. 7
Traditionally, “statutes of limitation are not control-
ling measures of equitable relief.” Holmberg v. Armbrecht,
327 U.S. 392, 396, 66 S.Ct. 582, 584, 90 L.Ed. 743 (1946).
The plain language of section 2462 does not apply to
equitable remedies. See North Carolina Wildlife Federation
v. Woodbury, Case No. 87-584-CIV-5 (E.D.N.C.1989) (“The
express terms of 28 U.S.C. section 2462 apply only to
suits for the enforcement of a ‘civil fine, penalty or forfei-
ture.” "); United States v. Hobbs, 736 F.Supp. 1406, 1410
(E.D.Va.1990) (“[Section 2462], by its own terms, has no
bearing on suits in equity.”)
Banks, however, urges us to adopt the “concurrent
remedy rule,” which provides that “equity will withhold
its relief . . . where the applicable statute of limitations
15(b), which provides that “unpled issues which are tried with
either express or implied consent of the parties are to be treated
as if they were raised in the pleading.” Cioffe v. Morris, 676 F.2d
539, 541 (11th Cir.1982). The government did not expressly
consent to litigate this matter; the sole question is whether the
government impliedly consented by failing to object or respond.
We believe that it did.
“[I]mplied consent under Rule 15(b) will not be found if the
[opposing party] will be prejudiced, that is, if the [opposing
party] had no notice of the new issue, if [he] could have offered
additional evidence in defense, or if the [opposing party] in
some other way was denied a fair opportunity to defend.” Id. at
542. Here, the government was fully aware of Banks’ position
and simply chose not to respond to Banks’ motion. We,
therefore, believe that the government impliedly consented to
the litigation of the statute of limitations issue for the equitable
claims. Because, however, we conclude that the statute of
limitations does not apply to claims for equitable relief brought
by the government in its sovereign capacity, our conclusion
ultimately affords Banks no relief.
App. 8
would bar the concurrent legal remedy.” Cope v. Anderson,
331 U.S. 461, 464, 67 S.Ct. 1340, 1341, 91 L.Ed. 1602
(1947).5 Banks relies chiefly on United States v. Windward
Properties, Inc., 821 F.Supp. 690 (N.D.Ga.1993) to support
his position. In Windward, the government sought equita-
ble relief and civil penalties under section 309 of the CWA
against the defendant for unpermitted discharge of
dredged or fill materials into streams and adjacent wet-
lands. There, the court applied the concurrent remedy
rule to bar the government's claims for equitable relief
under similar facts to this case. Id. at 693.
The Windward court, however, did not address the
well-established rule that “an action on behalf of the
United States in its governmental capacity .. . is subject
to no time limitation, in the absence of congressional
enactment clearly imposing it,” E.I. du Pont de Nemours &
Co. v. Davis, 264 U.S. 456, 462, 44 S.Ct. 364, 366, 68 L.Ed.
788 (1924); United States v, Alvarado, 5 F.3d 1425, 1427
(11th Cir.1993), or the canon of statutory construction that
“any statute of limitations sought to be applied against
the United States ‘must receive a strict construction in
favor of the Government.’ ” Alvarado, 5 F.3d at 1428.
Incorporating these principles into the analysis, the
properly constructed rule is that - absent a clear expres-
sion of Congress to the contrary - a statute of limitation
does not apply to claims brought by the federal govern-
ment in its sovereign capacity. The statute is enforced
5 The government in this case, contending that the statute
of limitations does not apply to equitable claims, sought
equitable relief only for Banks’ violations that occurred outside
section 2462's limitations period.
App. 9
against the gcvernment only when the government is
acting to vindicate private interests, not a sovereign or
public interest. See United States v. Beebe, 127 U.S. 338, 347,
8 S.Ct. 1083, 1088, 32 L.Ed. 121 (1888).¢
We conclude, therefore, that the concurrent remedy
rule cannot properly be invoked against the government
when it seeks equitable relief in its official enforcement
capacity. Because Congress did not expressly indicate
otherwise in the statutory language of section 2462, its
provisions apply only to civil penalties; the government's
equitable claims against Banks are not barred.
II. Jurisdictional Wetlands
Banks also disputes that his lots qualify as jurisdic-
tional wetlands. Wetlands are “those areas inundated or
saturated by surface or ground water at a frequency and
duration sufficient to support, and that under normal
circumstances do support, a prevalence of vegetation typ-
ically adapted for life in saturated soil conditions. Wet-
lands generally include swamps, marshes, bogs and
similar areas.” 33 C.F.R. § 328.3(b). A “wetland” under
the CWA must meet the three criteria set out in the
© In Federal Election Commission v. Williams, 104 F.3d 237 (9th
Cir. 1996), the Ninth Circuit applied section 2462 to bar the FEC’s
action for injunctive relief, citing to Cope v. Anderson, 331 U.S.
461, 67 S.Ct. 1340, 91 L.Ed. 1602 (1947). The Williams decision —
not unlike the Windward opinion - failed to distinguish between
the application of the statute of limitations to the United States
in its private versus its sovereign capacity. No other circuit has
addressed this issue.
App. 10
Corps’ 1987 Wetlands Delineation Manual.’ (1) a prevalence
of hydrophytic plants, (2) hydrological conditions suited
to such plants, and (3) the presence of hydric soils.
Banks specifically contests the district court’s finding
that his lots meet the hydric soil criterion; he cites the
report of one of the government's experts, Dr.
Kruczynski, who was the Environmental Protection
Agency’s leading regional wetlands biologist. In his
report, Dr. Kruczynski concluded: “There is little or no soil
at this location . . . Caprock limestone wetlands are
described in the [1989 Corps Delineation Manual] as a
Problem Area . . . and meet the criteria despite the lack of
hydric soils when wetland hydrology is present.” In the
light of other evidence presented at trial, however, we
find that the district court's conclusion about the hydric
soil criterion was not clearly erroneous.
First, Dr. Kruczynski explained in testimony that he
did not spend a lot of time analyzing the soils on Banks’
” Banks challenges the Corps’ use of the 1989 version of this
Manual, which Congress ultimately banned. Banks argues that
the 1989 Manual, which was used to evaluate some of his land,
greatly expanded the lands that could be classified as wetlands
by allowing certain land - such as caprock limestone - to qualify
as regulatable wetlands despite its failure to Satisfy all three
criteria in the 1987 Manual. The district court, however, found
that the evidence proved that Banks’ lands met all three of the
1987 Manual’s criteria, rendering Banks’ argument moot. Our
focus is limited to whether, based on the evidence presented to
the district court, its factual findings were clearly erroneous.
8 At the time of Dr. Kruczynski’s analysis, Congress had
not yet banned the 1989 Manual. Dr. Kruczynski’s analysis was
conducted with the 1989 Manual which, unlike the 1987 Manual,
incorporates caprock limestone wetlands.
App. 11
lots for his report: the soils present were clearly hydric
and the quantity of soil was not critical in the 1989
Manual, under which he was Properly operating at the
time. He also testified that he would have classified
Banks’ lots as wetlands under the 1987 Manual.
The government also presented other expert testi-
mony about soil conditions on Banks’ land. For example,
Dr. Wade Hurt, a soil scientist who formerly headed the
Florida office of the U.S. Department of Agriculture’s Soil
Conservation Service, testified that Banks’ lots, before his
clearing and filling, would have been approximately 30
percent exposed rock, 15 percent non-hydric soils and 55
percent hydric soils. Dr. Ronald Jones, a professor of
environmental sciences, and Curtis Kruer, a former Corps
employee and biologist with special expertise in water
level monitoring and aerial photography interpretation,
also testified that Banks’ lands were wetlands under the
1987 Manual’s criteria.
“If the district court’s account of the evidence is
plausible in light of the record viewed in its entirety, the
court of appeals may not reverse it even though con-
vinced that had it been sitting as the trier of fact, it would
have weighed the evidence differently.” Anderson v.
Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84
L.Ed.2d 518 (1985); see also United States v. Riverside
Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88
L.Ed.2d 419 (1985) (applying clearly erroneous standard
to district court’s determination that respondent's prop-
erty met wetlands criteria). Sufficient plausible evidence
supports the district court’s decision.
App. 12
Ill. Adjacent Wetlands
The district court concluded that Banks’ lands were
wetlands adjacent to navigable, tidal waters and therefore
subject to the Corp’s regulatory jurisdiction. See 33 C.ER.
§ 328.3(a)(1), (7) (1995). Banks disputes, however, that his
lands are adjacent? “wetlands.”
Sitting as trier of fact, the district court found that
“the Lots are part of a meandering wetland slough tra-
versing Big Pine Key to Pine Channel on the west and
Bogie Channel on the east.” Banks contests this finding,
arguing that his lots - if wetlands at all — are isolated
ones, because they are all at least one half mile from
either of the navigable channels and have no hydrological
relationship with these waters. Banks also contends that
Watson Boulevard, a paved road, blocks water flow
between Banks’ lots and Bogie Channel.
We find that the district court's determination that
Banks’ lands were adjacent wetlands is not clearly erro-
neous. Experts testified that a hydrological connection’
exists between Banks’ lands and Pine and Bogie Chan-
nels. This connection was primarily through groundwa-
ter, but also occurred through surface water during
storms. The court also found ecological adjacency based
on the water connections and the fact that the lots serve
as habitat for birds, fish, turtles, snakes and other wild-
life.
In United States v. Tilton, 705 F.2d 429 (11th Cir.1983),
we addressed the issue of adjacency under similar facts.
° Adjacent is defined as “bordering, contiguous, or
neighboring.” 33 C.E.R. 328.3(c) (1995).
App. 13
Finding the defendant's Swamp was an adjacent wetland,
we relied on similar evidence to establish hydrological
and ecological links with the nearby river. Also, in Tilton
~ as here — the hydrological connection flowed mainly
through ground water; the surface water only connected
at extreme high tides, such as in hurricanes. Id. at 431
n. 1. In the light of Tilton, the district court committed no
clear error in finding Banks’ lands have the hydrological
connection needed to qualify as adjacent wetlands.10
With regard to Watson Boulevard, man-made dikes
or barriers separating wetlands from other waters of the
United States do not defeat adjacency. 33 C.E.R. § 328.3(c).
The district court therefore properly rejected Banks’ argu-
ment to the contrary.
IV. Nationwide Permit 26 (NWP 26)
Banks argues that even if his lands qualify as juris-
dictional, adjacent wetlands, some of his discharge activ-
ities were permissible under NWP 26. The CWA provides
that the Corps can issue general permits on a state,
regional or nationwide basis under certain circumstances.
33 U.S.C. § 1344(e). From 1980 through 1994, the Corps
has administered five versions of NWP 26, covering the
discharge of material into navigable waters of the United
States that are either (1) above the headwaters or (2) are
1° Because the district court did not err in characterizing
Banks’ lands part of one continuous wetland, Banks’ argument
that his lands were outside the scope of regulation because they
were adjacent to waters that were themselves wetlands, as
described in 33 C.ER. § 328.3(a)(7), also fails.
App. 14
other non-tidal waters that are not part of a surface
tributary system to interstate waters or navigable waters.
Banks’ position is that the Corps expanded the scope
of non-tidal waters into which discharges were autho-
rized by NWP 26 in its 1982 rule, but then contracted the
scope in its 1991 rule. Banks contends that some of his
discharge activity during the period from 1982 to 1992,
therefore, was within the scope of the NWP 26 because
the waters into which he discharged met the definition at
that time of “non-tidal waters that are not part of a
surface tributary system to interstate waters or navigable
waters.” The government, however, disputes this conten-
tion, arguing that wetlands adjacent to navigable waters —
such as Banks’ lots — have always been considered
included in the term “surface tributary system,” and that
the Corps has consistently construed and enforced this
provision.
The district court correctly rejected Banks’ argument
that NWP 26 authorized some of his discharges, because
Banks failed to carry his burden of persuasion on this
issue. See United States v. Cumberland Farms of Conn., Inc.,
826 F.2d 1151, 1157 (1st Cir.1987) (holding party seeking
to qualify under nationwide permit had burden of per-
suading court of permit’s applicability); see also Riverside
Irrigation District v. Andrews, 758 F.2d 508, 514 (10th
Cir.1985). The Corp’s interpretation of its own regula-
tions, not Banks’ interpretation, is entitled to substantial
deference. Lyng v. Payne, 476 US. 926, 939, 106 S.Ct. 2333,
2341-42, 90 L.Ed.2d 921 (1986), reh’g denied, 478 U.S. 1031,
107 S.Ct. 11, 92 L.Ed.2d 766 (1986). In Banks’ Particular
case, the Corps consistently construed his acts to be out-
side the scope of NWP 26; as early as 1983, Banks was
ma i
App. 15
specifically told by the Corps that his activities required a
permit. In 1984, the Corps denied Banks’ application for
an after-the-fact permit for his discharge activities. Banks
has not met his burden to show that any of his lots fell
within the scope of NWP 26’s “other non-tidal waters
that are not part of a surface tributary system to interstate
waters or navigable waters” between 1982 and 1992.
We, therefore, conclude that the statute of limitations
does not bar the government's claims for equitable relief
in this case, and that the district court’s finding that
Banks’ land constituted jurisdictional, adjacent wetlands
was not clearly erroneous. We further hold that Banks has
failed to demonstrate that some of his activities were
permitted by NWP 26. The judgment of the district court
is
AFFIRMED.
App. 16
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 91-10107-CIV-KING
UNITED STATES OF AMERICA,
Plaintiff / Counterdefendant, MEMORANDUM
v. OPINION
PARKS B. BANKS,
Defendant /Counterplaintiff.
/
This Clean Water Act case involves property on Big
Pine Key, an island located in a chain of islands known as
the Florida Keys. The United States alleges that the
Defendant, Parks B. Banks, unlawfully placed pollutants
in the form of fill material in adjacent freshwater wet-
lands without a permit. The Court has jurisdiction pur-
suant to 28 U.S.C. §§ 1331, 1345 and 1355, and 33 U.S.C.
§ 1319(b).
I. The Nature of the Action
The Plaintiff, United States of America, seeks to
obtain injunctive relief and civil penalties against the
Defendant, Parks B. Banks, for violation of Section 301(a)
of the Clean Water Act (“CWA”), 33 U.S.C. § 1311(a). The
United States alleges that Banks has filled, without
obtaining a permit, five freshwater wetland Lots located
on Big Pine Key, Florida. The United States further con-
tends that the wetlands Lots are adjacent to navigable
waters of the United States in that Lot QQ is adjacent to
Pine Channel, and Lots IR, IQ, IP and IO are adjacent to
App. 17
Bogie Channel. For relief, the United States requests that
the Court (a) enjoin the discharge by Banks of additional
dredged and fill materials into the freshwater wetlands,
(b) require Banks to remove materials which he has here-
tofore unlawfully discharged into the wetlands, (c)
require Banks to restore the wetlands to their undis-
turbed condition prior to such unlawful discharges, and
(d) require Banks to pay appropriate civil penalties.
Parks B. Banks admits to placing fill on the subject
Lots, but alleges that the property is not jurisdictional
wetlands, and therefore, did not require a Section 404
permit under the provisions of the Clean Water Act, 33
U.S.C. § 1344. Banks does not challenge the Corps’ denial
on April 5, 1984, of his after-the-fact individual permit
application to fill Lots IR and IQ.
The trial in this matter was bifurcated in the interests
of judicial economy, with the liability phase {items (a)
and (b), above} tried in a bench trial, leaving issues of
remedy and penalty {items (c) and (d), above} for later
resolution by the Court.
For the reasons set forth below, the Court concludes
that judgment must be entered for the Plaintiff. The Court
finds that, from 1980 to 1983, the Defendant placed
unauthorized fill on Lot IR and a portion of Lot IQ on Big
Pine Key, Florida, which the Court finds to have been
jurisdictional adjacent freshwater wetlands. These wet-
lands were adjacent to navigable and tidal waters of the
United States. Further, the Defendant did not remove the
fill when ordered by the United States Army Corps of
Engineers in 1984 to do so after the Corps denied his
after-the-fact permit application. In the years following
App. 18
this permit denial, the Defendant placed additional fill on
three other Lots he owned on Big Pine Key. These Lots, IP,
IO and QQ, the Court also finds to be adjacent freshwater
wetlands that could not be lawfully filled without a per-
mit from the Corps. All of the unauthorized filling activ-
ities, as well as land-leveling and removal of natural
vegetation were performed by the Defendant and his
agents, to convert the sites to uplands for use in the
Defendant's coconut tree farm operations.
II. FINDINGS OF FACT
1. The United States alleges Parks B. Banks has
violated the Clean Water Act! (“CWA”) by his
unauthorized discharges of pollutants into waters of the
United States at Lots IR, IQ, IP, IO and QQ (“the Lots”),
located in Section 22, Township 66 South, Range 29 East
on Big Pine Key, Florida.
2. Mr. Banks currently owns the Lots and either
placed fill on them himself with a dump truck, bulldozer
or similar equipment, or had another individual place the
fill for him. This fill took various forms, including rock
pit material, silt, manure, organic debris, black dirt, palm
fronds and refuse.
3. The subject Lots are adjacent to Bogie Channel
and Pine Channel and are part of a meandering wetland
slough that extends across Big Pine Key between the two
channels. Both Bogie Channel and Pine Channel are tidal
navigable waters and both connect to Florida Bay, a tidal
1 “CWA”, 33 U.S.C. § 1344.
ee A eh RE
App. 19
navigable water. The band of wetlands is continuous
from the Banks’ Lots to the navigable waters.
4. The Lots lie south of Watson Boulevard, a paved
road which crosses the wetland slough between Lots IR,
IQ, IP, 10 and Bogie Channel.
5. Defendant Banks purchased Lots IR, IQ, and QQ
in 1980, and has owned those Lots since then. Lots IO and
IP were purchased by Defendant in 1988 and have been
owned by him since then.
6. Prior to being disturbed by Defendant Banks, Lot
IR was vegetated with buttonwood, sawgrass, red man-
groves and other wetland plant species as listed in the
applicable regulations. Lots IQ, IP and IO were vegetated
with sawgrass, slash pine and other wetland species; Lot
QQ was vegetated with white mangroves, red man-
groves, sawgrass, buttonwood, and other wetland spe-
cies. A red mangvove pond which has been partially filled
by Defendant, is located on the northwest corner of Lot
IR. A similar red mangrove pond existed on Lot QQ prior
to filling.
7. The wetland slough which crosses Big Pine Key is
characterized by the expert witnesses as caprock wet-
lands. Caprock is a limestone that is highly porous and
permeable below the surface. It is somewhat smooth on
portions of its surface with cracks, crevices, and low
places in which hydric soil accumulates and in which
wetland vegetation grows. The soils in these cracks, crev-
ices and low places are often saturated or inundated with
water. The majority of the surface area in the wetland
slough is covered by hydric soils, not barren caprock.
App. 20
8. Defendant Banks began filling Lots IR and IQ
almost immediately after purchasing them in 1980. Utiliz-
ing bulldozers to clear these parcels, he destroyed much
of the existing vegetation (buttonwood and other wetland
species) and placed six inches to one foot of fill over the
Lots. This filling activity, which took place over a three
year period, was undertaken to prepare the land for
planting the seeds for his coconut palm farming opera-
tion. Banks did not notify the Corps of these activities, or
seek a permit, either prior to or while they were ongoing.
9. In the mid-1980’s, Defendant Banks poured a
concrete slab and built a house on Lot IQ.
10. Refuse and other organic material as fill was
dumped on Lot QQ in 1983. Mr. Banks then planted
coconut palms in that fill. Additional palms were planted
on this lot in 1993.
11. In 1989 and 1990, the Defendant built a two to
three foot raised berm of crushed limestone fill on the
Property on the western, southern and eastern sides of
Lots IP and IO, continuing north on the eastern property
line of Lots IQ and IR. Coconut palms were planted in the
raised berm.
12. Defendant Banks did not have a permit required
pursuant to CWA Section 404, 33 U.S.C. § 1314, authoriz-
ing any of these filling activities in waters of the United
States.
13. In 1983, Curtis Kruer, field biologist for the
Corps, became aware of the Defendant Banks’ unlawful
filling activities on Lots IR and IQ. The parties have
stipulated that the Corps sent and the Defendant received
App. 21
a Cease & Desist Order in regard to this activity, request-
ing that Banks cease his filling activity and submit an
after-the-fact permit application to the Corps.
14. Defendant Banks subsequently applied for an
after-the-fact permit, for fill activities on Lots IR and IQ.
The Corps issued a formal public notice of the applica-
tion, as required by its regulations.
15. After evaluating the site and receiving com-
ments pursuant to the public notice, the Corps denied the
after-the-fact ay plication on April 5, 1984, on the grounds
that: 1) the property was valuable freshwater wetlands, a _
scarce resource and important habitat for Key Deer, for
shore and wading birds, and other wildlife on Big Pine
Key, and that destruction of such wetlands was not in the
public interest; 2) that there were alternative sites avail-
able to Banks for his activity; and 3) that the activity was
not considered water dependent under the regulations.
16. Defendant Banks was contacted by the Corps
concerning his actions on Lot IR and Lot IQ (then vege-
tated with red mangroves, sawgrass and buttonwood)
and told that the unauthorized fill which he had placed
on these Lots should be removed. At that time in 1984,
the Corps did not regulate wetlands dominated by “slash
pine”, the prevalent overstory vegetation on the major
portion of Lot IQ. Therefore, Banks was informed that Lot
IQ, with the exception of a small northeast corner, was
uplands which could be utilized to continue his farming
operations. Banks was also told that a small portion of the
southeast corner of Lot IR was being considered uplands
due to the presence of slash pines.
App. 22
17. Mr. Banks did not submit another permit appli-
cation, nor did he remove the fill from Lot IR or any of
Lot IQ.
18. Mr. Banks received a letter in 1985 from the
Corps’ Office of Counsel, advising him that failure to
remove the fill would result in a referral to the United
States Attorney’s Office for prosecution.
19. The Corps became aware in January, 1990 that
the Defendant had undertaken additional filling activities
on Lot IR. The parties have stipulated that the Corps sent,
and the Defendant received, a Cease & Desist Order in
February, 1990, ordering Banks to stop this fill activity
and restore the property.
20. The Defendant purchased Lots IP and IO, imme-
diately south of Lot IQ, in 1990 and commenced filling
activities on those two additional Lots. The parties have
stipulated that the Corps sent, and the Defendant
received, additional Cease & Desist Orders in November,
1990, ordering him to stop those unpermitted activities
on Lots IP, IQ and QQ.
21. In the period of time between the last communi-
cation from the Corps to Defendant Banks in 1985 and the
Defendant's new fill activities in 1990, the 1987 Federal
Wetlands Delineation Manual was published. This man-
ual formalized and standardized the Corps’ existing
methodology for determining whether a property is a
wetland. The Manual requires that a property must meet
three requirements: hydrophytic vegetation, hydric soil,
and wetland hydrology. Also, a much expanded list of
wetland vegetation was published by the United States
App. 23
Fish and Wildlife Service in 1986. That list, as continu-
ously updated, is utilized by the Corps to determine
whether plants are hydrophytic.
22. Dr. William Kruczynski, the biologist who is the
wetlands expert for the nine-state Region IV Office of the
United States Environmental Protection Agency (“EPA”),
testified that all five of the Defendant’s Lots would have
met the three parameters required by the 1987 Manual,
had they not been filled.
23. The Defendant does not contest the evidence
that the predominant vegetation on all of the Lots,
including the slash pine-wiregrass community on and
surrounding Lots IQ, IO and IP, meets the wetland vege-
tation criterion stated in the 1987 Manual.
24. G. Wade Hurt, a soil scientist with the Soil Con-
servation Service, United States Department of Agricul-
ture, testified for the Plaintiff that more than fifty per cent
of the Lots’ surfaces are covered with hydric soils. The
Court finds this testimony to be more credible than that
of Defendant's expert, Dr. Luther Holloway, who testified
that the Lots comprise a caprock area that is mostly solid
exposed rock and has virtually no soils. Mr. Hurt accu-
rately classified and categorized the soils and soil cover-
ages on the Lots.
The Defendant's witnesses do not seriously dispute
the testimony of Dr. Kruczynski, Mr. Hurt, and Dr.
Ronald Jones, expert witnesses for the Plaintiff with
extensive experience with Florida wetlands, that
although barren caprock exists in small sections on the
Lots and the surrounding properties, these areas were
thriving wetland communities before being disturbed by
App. 24
Banks. Wetlands vegetation extensively covers the prop-
erty immediately surrounding the Banks’ Lots.
25. Plaintiff established that the water level at each
of the five Lots easily meets the minimum hydrology
criterion of the 1987 Manual. All of the properties are
inundated or saturated to the surface, for at least five per
cent of the growing season. The root zone is the top
twelve inches below the surface. The data on water levels
was obtained by Mr. Kruer, using an average elevation
for each of the Lots based on the stipulated survey and on
actual measurements of the water levels in nearby mos-
quito ditches for a monitored period of 172 days.
The Defendant contends that the water levels in the
mosquito ditches are not indicative of water saturation
levels at the Lots because the caprock is, in the Defen-
dant’s view, not readily permeable below the surface.
This contention is not born out by the record. The Defen-
dant’s expert testified he did not do any hydrological
studies of the Lots, and his testimony is directly contrary
to the convincing testimony of Mr. Hurt, Mr. Kruer and
Dr. Jones. The Plaintiff’s experts all testified that lime-
stone is extremely porous and that numerous hydrologi-
cal studies of Big Pine Key establish that the water
readily travels under the surface. Thus, the Court finds
the water levels in the ditches correspond to the satura-
tion levels of the Lots and meet the saturation criterion of
the Manual.
26. Dr. William Kruczynski testified that on several
occasions, including the day before trial, he walked the
area from Bogie Channel to Pine Channel, passing
App. 25
through the subject Lots. Except for crossing Watson Bou-
levard and Key Deer Boulevard, Dr. Kruczynski remained
in wetlands the entire way. The aerial photographs from
1975, 1981, 1983, 1984 and 1991, show wetland vegetation
signatures of sawgrass and mangroves on the wetland
slough traversing across the subject Lots and Big Pine
Key. Dr. Kruczynski also testified that wetlands were
continuous between Lot QQ and Pine Channel.
27. Dr. Holloway, testifying for the Defendant,
agrees that there are wetlands from Bogie Channel all the
way to Watson Boulevard. He states, however, that he
believes there are upland pockets that isolate wetland
pockets between Lot IR and Watson Boulevard. His testi-
mony does not convince this Court that the wetlands
between Lot IR and the tidal coast line are surrounded by
uplands that would disrupt the “aajacency” of the Lot IR
wetlands to Bogie Channel to Lot IR. The Court finds that
continuous wetlands do exist from Lot QO to Pine Chan-
nel, as confirmed by various aerial photographs and the
testimony of the witnesses. Both Pine and Bogie Channels
are tidal navigable waters which connect with Florida
Bay, a tidal navigable water. A wetland slough does exist
in this area.
28. The Court finds, therefore, that all five of the
Lots are adjacent freshwater wetlands and that none of
the Lots are isolated wetlands.
29. After the Corps’ denial of his after-the-fact per-
mit application, and issuance of the Cease & Desist
Orders, the Defendant continued to fill the sites and to
destroy vegetation on the sites. He did not remove any
fill or endeavor to restore the sites.
App. 26
30. Defendant Banks’ destruction of the Lots’ wet-
land vegetation, and his leveling, spreading and filling
activities on these Lots raised their elevation.
31. The Defendant's leveling, spreading and filling
activities have caused identifiable adverse effects, both
individual and cumulative, on the sites, vital aquatic and
habitat functions.
32. The Plaintiffs’ experts testified that the Lots,
which are located less than a mile from the Key Deer
Refuge, provide habitat for Key Deer, an endangered
species. In its filled condition, the property no longer
fully serves as a ready natural source of ponded water.
Also, the diversity of natural vegetation that serves as
food for the Key Deer and other animals has been seri-
ously disturbed.
33. Further, Wayne Hoffman, a research scientist for
the National Audubon Society, testified that prior to
being filled, the Lots were available to migratory wading
birds, such as ibises, herons, and egrets, for feeding in
times of high tides and heavy rains on the coast. In times
of drought, these wading birds benefit from the interior
freshwater wetlands, such as those that formerly were
found on Banks’ Lots, since fish are concentrated in the
drying pools of water caught in the low areas. Non-
wading birds, such as kingfishers, use the interior fresh-
water wetlands for feeding as well. Migratory passerine
birds, such as palm warblers and the Savannah sparrow,
feed on insects found in the variety of native wetland
vegetation that is no longer available on the Lots which,
having been filled by Banks, are intensively cultivated
with a single crop.
App. 27
34. A report of wildlife observations by Curtis
Kruer during his 172 days of water level monitoring at
the Lots (Govt. Exh. 12) shows that the properties serve
as habitat for fish, frogs, Lower Keys mud turtle and box
turtle, in addition to a large variety of migratory wading
and non-wading birds.
35. Dr. Ronald Jones testified that the freshwater
wetlands in the interior of Big Pine Key, which are part of
a freshwater lens system, are critical to the proper func-
tioning of Big Pine Key’s ecosystem because, like the
Everglades, they serve as a filter, and thus enhance water
quality.
36. All of the biologists and other scientists who
testified for the Plaintiff, Dr. Kruczynski, Mr. Kruer, Mr.
Hurt, Dr. Jones and Dr. Hoffman, testified that freshwater
wetlands such as the Lots in their undisturbed condition
are a scarce natural resource which in the Keys, are found
primarily on Big Pine Key.
37. On April 19, 1994, the Environmental Protection
Agency issued Defendant Banks an Administrative Order
(404-94-19) to cease any additional discharges of any
pollutant on Lot QQ and to submit a restoration plan for
the discharge area within fifteen days of receipt of the
Order. Defendant Banks has not submitted a restoration
plan for this additional violation.
Ill. CONCLUSIONS OF LAW
1. “The Clean Water Act, 33 U.S.C. § 1251 et seq., is a
comprehensive effort by Congress to restore and maintain
the chemical, physical and biological integrity of the
App. 28
nation’s waters.” United States v. Carter, 18 Env’t Rep. Cas.
(BNA) 1804, 1807 (S.D. Fla. 1982) (citing 33 U.S.C. § 1251).
The cornerstone of the CWA regulatory scheme is Section
301, 33 U.S.C. § 1311, which Prohibits the discharge of
pollutants into navigable waters except when in compli-
ance with various provisions of the Act, including Section
404, 33 U.S.C. § 1344. Id.
2. “Section 404 establishes a program for the issu-
ance of permits for the discharge of dredged or fill mate-
rial subject to certain criteria and standards aimed at
achieving the goals of the Act.” Id. at 1807, n. 1. Pursuant
to § 404(a), the Corps has responsibility for administering
this permit program, by evaluating applications pursuant
to promulgated federal regulations. Id.
3. Section 320.4 of the Corps regulations, promul-
gated in 1980 and in effect today, provides that in eval-
uating applications, the Corps engage in a public interest
review (§ 320.4(a)) in which the probable impacts, includ-
ing cumulative impacts, of the project on the public inter-
est are considered. This balancing process must weigh
factors such as conservation, economics, aesthetics, gen-
eral environmental concerns, wetlands, cultural values,
fish and wildlife values, and flood hazard. No permit
may be issued unless it is found to be in the public
interest. 33 C.E.R. § 320.4. In addition, no permit can be
issued unless it conforms to the environmental Protection
Agency’s Section 404(b) (1) Guidelines (40 C.ER. 230) (33
C.F.R. § 323.6(a)) which specify additional impact review
criteria.
EE
App. 29
4. The act of “discharging of a pollutant” occurred
here when Defendant Banks utilized dump trucks, bull-
dozers and other equipment to place rock-pit fill, manure
fill, silt, organic debris and other fill material on the Lots.
The term “discharge of a pollutant” is defined in 33
U.S.C. § 1362(12) as “any addition of any pollutant to
navigable waters from any point source.” See Avoyelles
Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 923 (Sth
Cir. 1983). The term “point source” includes bulldozers,
dump trucks, and other equipment used to place dredged
or fill material in waters of the United States. Weiszmann
v. District Engineer, United States Army Corps of Engineers,
526 F.2d 1302, 1306 (5th Cir. 1976).
5. Rock fill, dirt, organic debris, and biological
materials fall within the broad meaning of the term “pol-
lutant”. 33 U.S.C. § 1362(6); United States v, Carter, 18
Env’t Rep. Cas. at 1807; United States v. Huebner, 752 F.2d
1235, 1242 (7th Cir.), cert. denied, 474 U.S. 817 (1985).
Defendant’s covering, leveling, grading, and filling of the
formerly vegetated sites at issue were discharges of a
dredged soil, biological material, rock and/or sand, each
of which is defined as a pollutant by the CWA. These
discharges changed the bottom elevation of the sites. See
Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d at
924-25. (landowner violated CWA by discharging fill
materials into wetland in an effort to change the bottom
elevation of the land and convert it to upland.)
6. “Navigable waters” means “waters of the United
States,” 33 U.S.C. § 1362(7). “Waters of the United States”
are defined by 33 C.ER. § 328.3(a)(1), (3), (5) and (7) and
40 CER. § 232.2(q)(1), (3), (5) and (7) to include the
following: (i) all waters which are currently used, were
App. 30
used in the past, or may be susceptible to use in interstate
or foreign commerce; (ii) all other waters such as, among
other things, wetlands or sloughs, the use, degradation or
destruction of which could affect interstate or foreign
commerce; (iii) tributaries to such waters; and (iv) wet-
lands adjacent to such waters or their tributaries.
7. “Wetlands” are defined by 33 C.F.R. § 328.3(b)
and 40 C.F.R. §§ 122.2 and 232.2(r), as those areas that are
“inundated or saturated by surface or ground water at a
frequency and duration sufficient to support, and that
under normal circumstances do support, a prevalence of
vegetation typically adapted for life in saturated soil
conditions.” 33 U.S.C. § 1344(a)-(b); 33 C.F.R. § 328.3(b);
United States v. Riverside Bayview Homes, Inc., 474 U.S. 121,
129 (1985). “Wetlands generally include swamps,
marshes, bogs, and similar areas.” 33 C.ER. § 328.3(b).
8. Congress intended the Statutory definition of
“waters of the United States” to assert “federal jurisdic-
tion” over the Nation’s waters to the maximum extent
possible under the Commerce Clause of the Constitution.
See Riverside Bayview Homes, 474 U.S. at 133-34; Tilton, 705
F.2d at 431.
9. The parties have agreed that the determination of
the wetlands issue shall be controlled by the Corps of
Engineers Wetlands Delineation Manual (1987) (“the
Manual”). The Manual provides that a wetland must
meet three parameters: it must have hydrophytic vegeta-
tion, hydric soil and wetland hydrology. To determine
hydrophytic vegetation, the Manual states the criterion as
follows: more than fifty per cent of the dominant species
shall be “obligate” wetland species (plants that occur
a rl
App. 31
almost always in wetlands under natural circumstances),
“facultative wetland” species (plants that occur usually in
wetlands) or “facultative” species (plants with a similar
likelihood of occurring in both wetlands and non-wet-
lands). (Manual at 18-19.)
10. Wetland delineation also requires the presence
of “hydric” soils which are defined as soils that are
saturated, flooded or ponded long enough during the
growing season to develop anaerobic conditions that
favor the growth and regeneration of hydrophytic vegeta-
tion. (Manual at 14 and 26.)
11. An area will meet the hydrology test for wet-
lands if the soil is saturated to the surface for a specified
period of time during the growing season. This period of
inundation or soil saturation varies according to the
hydrologic/soil moisture regime and occurs in both tidal
and nontidal situations. The subject Lots exceed the mini-
mum hydrological criterion of inundation or saturation
within twelve inches of the surface for five per cent of the
growing season (Manual at 36-38.)
12. Dr. Kruczynski, Mr. Hurt, Mr. Kruer and Dr.
Jones testified that all of the Banks’ Lots meet the three
parameters outlined above. The Court finds this testi-
mony convincing for the reasons outlined in the Court's
Findings of Fact. Therefore, under the law and regula-
tions and the Manual promulgated thereunder, the Court
finds that the Lots are freshwater wetlands.
13. The law also requires the Court to decide if the
Lots are “adjacent” or “isolated” wetlands. This deter-
mination must be made because if the wetlands are iso-
lated and less than one acre of fill was placed in the
App. 32
wetland in 1980-1983, under the controlling regulations in
1977 and 1982, the Defendant would have been poten-
tially eligible for a general permit for Lot IR and the
wetland portion of Lot IQ. However, if the wetlands are
found under the law to be adjacent or if the Corps chose
to override any applicable general permit because of the
cumulative effect of the fill, then the Corps acted prop-
erly in requiring the Defendant to submit an application
for an individual permit. See O’Connor v. United States
Army Corps of Engineers, 801 F. Supp. 185, 190-91 (N.D.
Ind. 1992) (describing Corps permitting process).
It is the Defendant's position that the five Lots in
question are “isolated” and not “adjacent” wetlands to
either Bogie Channel or Pine Key Channel. The Defen-
dant argues that the subject Lots are all at least one-half
mile from either of the two navigable water channels and
thus have no hydrological relationship with any body of
navigable water. Between Lots IO through IR and Bogie
Channel is a fifty foot wide paved, elevated street called
Watson Boulevard. This street, constructed decades ago,
blocks any flow of water between Defendant’s Lots and
the navigable waters of Bogie Channel according to the
testimony of Defendant's witness.
14. Adjacent means bordering, contiguous, or
neighboring. Wetlands, even if separated from other
waters of the United States by dikes, barriers, natural
berms, beach dunes and the like, are still considered
“adjacent wetlands.” 33 C.F.R. § 328.3(c); United States v.
Tilton, 705 F.2d at 431.
15. The regulations provide that even if it were
found that the flow of surface water from the Lots into a
App. 33
navigable water were impeded by a manmade barrier
such as Watson Boulevard, that does not defeat a finding
that wetlands are adjacent and therefore subject to the
individual permitting process. Id; United States v. Lambert,
589 F. Supp. 366, 371 (M.D. Fla. 1984). Thus, even if
Watson Boulevard impedes or partially blocks the free
flow of the surface connection between the Lots and
Bogie Channel, the Lots are still adjacent wetlands. In
light of the regulation establishing that manmade barriers
cannot be considered isolating mechanisms, no hydro-
logical connection to other waters is required for a wet-
land to be considered adjacent.
More importantly, however, in this case, the govern-
ment established that such a connection exists through
ground water and through surface waters during storm
events. Such a hydrological connection to neighboring
navigable waters primarily consisting of ground water
rather than surface water, except in times of storms, such
as hurricanes, therefore further supports a finding of
adjacency. United States v. Tilton, 705 F.2d at 431, n. 1.
16. A finding of adjacency may be bolstered by a
showing of ecological links with neighboring navigable
waters, such as serving as wetland habitat for wading
and non-wading birds, reptiles and fish as well as by
testimony regarding the performance of water quality
filtering functions. Id.
17. Therefore, the expert scientific and wildlife
observation testimony offered on behalf of the Plaintiff
establishes that the Lots are adjacent from an ecological
standpoint in that: 1) there is a surface connection
between the Lots and navigable waters during storms
App. 34
and a subsurface connection at all times; and 2) the Lots
serve as habitat for wading and non-wading birds, fish,
Lower Keys mud turtles and box turtles, a variety of
snakes, and other wildlife.
18. Dr. Kruczynski, Mr. Kruer, and Dr. Jones also
testified that the Lots are a part of a meandering wetland
Slough traversing Big Pine Key to Pine Channel on the
west and Bogie Channel on the east. There is no credible
contrary testimony in the record. Therefore, under the
law, the Lots are adjacent wetlands, not isolated wet-
lands, and thus do not qualify for a general or nationwide
permit.
19. In its undisturbed condition, all of Lot IQ would
properly be considered, under the 1987 Manual, an adja-
cent freshwater wetland, as are all of the other four
Banks’ Lots.
20. The government in 1983, under less well devel-
oped standards concerning slash pine trees, advised Mr.
Banks that the major portion of Lot IQ was primarily an
upland Lot. For this reason, the Plaintiff waives any resto-
ration rights it may have, as well as any finding of
violation of the CWA, regarding the major portion of Lot
IQ. The Court finds that the Corps appropriately delin-
eated the major portion of Lot IQ and a small portion of
Lot IR, primarily an upland Lot in 1983, though both lots
would be delineated an adjacent freshwater wetlands
today under the 1987 Manual. The changed position
today, is grounded on additional knowledge the Corps
has gained in regard to wetland delineation, and, speci-
fically, in regard to wetland vegetation classification. See
Alma v. United States, 744 F. Supp. 1546, 1561-62 (S.D. Ga.
App. 35
1990) (finding that EPA did not act arbitrarily in changing
its prior determination when agency gave reasoned
explanation and effectuated change to serve public inter-
est). Wetlands constitute a productive and valuable
resource. Their unnecessary and unpermitted filling and
destruction constitutes a serious violation of the CWA
and should be discouraged as contrary to the public
interest.
21. Wetlands perform vital functions important to
the environment. These scarce interior freshwater wet-
lands of Big Pine Key serve, among other things, as
habitat for the endangered Key Deer species and for a
variety of migratory wading and non-wading birds, e.g.,
including egrets, herons, ibises, kingfishers and warblers.
The testimony proffered by the Plaintiff shows that these
wetlands also serve to enhance water quality, an impor-
tant wetland function. Conant v. United States, 786 F.2d
1008, 1009 (11th Cir. 1986) (citing United States v. Riverside
Bayview Homes, Inc., 474 US. 121, 134 (1985)). It is well
established that wetlands such as these also serve as
storage areas for storm and flood waters and to stem
erosion and control sedimentation. See 33 C.F.R.
§ 320.4(b); 40 C_ER. § 230.41; Riverside Bayview Homes, 474
U.S. at 134.
22. The Court concludes that the Lots at issue con-
stituted waters of the United States at the time of the
Defendant's activities.
23. The Court concludes that the Lots also constitu-
ted jurisdictional wetlands at the time of the Defendant's
activities.
App. 36
The Court concludes that these Lots do not qualify
for waiver of regular Corps permitting procedures under
the silviculture activity exclusion, 33 U.S.C.
§ 1344(f)(1)(A); 33 C.E.R. 323.4 or Nationwide Permit 26
and its predecessors, 33 C.F.R. § 330.4(a)(2) (1982) and 33
C.F.R. § 330.5(a)(26)(ii) (1984, 1986).
24. The Court also concludes that the Defendant’s
continuous and continuing disregard for the govern-
ment’s regulatory demands that he cease filling these
freshwater wetlands violated applicable law and harmed
the environment.
25. The Court concludes that the Defendant has vio-
lated the Clean Water Act by discharging pollutants in
the form of fill into the waters of the United States on
Lots IR, IP, IO, QQ and a portion of IQ, without a permit.
26. Section 1314(b) of CWA requires compliance
with administrative orders. The Court concludes that the
Defendant has violated the CWA by failing to comply
with the EPA’s administrative order requiring him to
restore the disturbed wetlands on Lot QQ.
For the foregoing reasons, the Court finds in favor of
the Plaintiff and against the Defendant.
It is
ORDERED, ADJUDGED and DECREED as follows:
1. The Defendant Parks B. Banks, his agents or
employees, be and they are hereby enjoined from dis-
charging additional fill materials into the property owned
by him on Big Pine Key, Florida, as described in this
Memorandum Opinion.
App. 37
2. The Defendant, Parks B. Banks, be and he is
hereby ORDERED to remove (or cause to be removed) the
fill material which he has unlawfully discharged into said
wetlands, in accordance with a time schedule to be
agreed upon between Defendant and Plaintiff. This time
schedule, for removal of the unauthorized fill material,
shall be filed with the Court on or before February 14,
1995.
3. Restoration of the wetlands to their undisturbed
condition prior to the unlawful filling, and determination
of civil penalties shall be adjudicated at a trial to be
scheduled by separate order.
DONE and ORDERED in chambers at the United
States District Courthouse, Federal Justice Building,
Miami, Florida, this 13th day of January, 1995.
/s/ JAMES LAWRENCE KING
JAMES LAWRENCE KING
U.S. DISTRICT JUDGE
SOUTHERN DISTRICT
OF FLORIDA
cc: Barbara K. Bisno, AUSA
Martin F. McDermott, Dept. of Justice
James B. [sic] Mattson, Esq.
App. 38
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 91-10107-CIV-KING
UNITED STATES OF AMERICA,
Plaintiff /Counterdefendant,
vs.
PARKS B. BANKS,
Defendant/Counterplaintiff.
/
FINAL JUDGMENT
THIS CAUSE comes before this Court sua sponte.
After bifurcated bench trials on liability and damages, the
Court issued a memorandum opinion on liability on Jan-
uary 13, 1995 and an Order Requiring Restoration and
Imposing Penalty and Injunctive Relief on August 28,
1995.
Accordingly, after a careful review of the record, and
the Court being otherwise fully advised, it is
ORDERED and ADJUDGED that FINAL JUDGMENT
be, and the same is hereby, ENTERED in favor of Plain-
tiff, the United States, in accordance with this Court’s
Opinion dated [sic] January 13, 1995 and Order dated
August 28, 1995.
DONE and ORDERED in chambers at the United
States District Courthouse, Federal Justice Building,
Miami, Florida, this 1st day of September, 1995.
App. 39
/s/ James Lawrence King
JAMES LAWRENCE KING
U.S. DISTRICT JUDGE
SOUTHERN DISTRICT
OF FLORIDA
cc: Lisa B. Hogan, AUSA
Martin McDermott, Esq.
James Mattson, Esq.
App. 40
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
UNITED STATES OF AMERICA, ) CIV-KING
Plaintiff /Counterdefendant, ) Case No. 91-10107
v.
PARKS B. BANKS,
Defendant /Counterplaintiff.
See ee eee ee
ORDER REQUIRING RESTORATION, AND
IMPOSING PENALTY AND INJUNCTIVE RELIEF
1. This civil enforcement action was brought by the
Plaintiff, the United States of America, pursuant to sec-
tions 301 and 404 of the Clean Water Act (“CWA” or the
“Act”), 33 U.S.C. §§ 1311, 1344, in an effort to restore
valuable freshwater wetlands on Big Pine Key, Florida,
located on property owned by Parks B. Banks (“Defen-
dant” or “Banks”). In its Complaint and prayer for relief,
the United States requested that Court enjoin the future
discharge by Banks of additional dredged or fill materials
into these wetlands, to require Banks to restore the wet-
lands to their undisturbed condition prior to such unlaw-
ful discharges by removing the fill and otherwise
implementing a restoration plan, and to require Banks to
pay an appropriate civil penalty.
2. The action was bifurcated in the interest of judi-
cial economy. The liability phase was tried before the
Court in a bench trial in November 1994; adjudication of
aa ec pr ce
App. 41
restoration issues and the determination of the civil pen-
alty to be assessed against Banks were deferred to a
second phase.
3. On January 13, 1995, the Court rendered its Mem-
orandum Opinion! on liability issues, finding, inter alia,
that (a) Banks unlawfully placed unauthorized fill on lot
IR and a portion of Lot IQ on Big Pine Key, Florida, which
are jurisdictional freshwater wetlands adjacent to naviga-
ble and tidal waters of the United States; (b) Banks did
not remove that fill when ordered to do so by the United
States Army Corps of Engineers (the “Corps”) in 1984,
after the Corps denied the Defendant's after-the-fact per-
mit application; (c) in the years following this permit
denial, Banks unlawfully placed additional fill on three
other Lots (Lots IO, IP and QQ) he owns on Big Pine Key,
which three lots are also jurisdictional freshwater wet-
lands adjacent to navigable and tidal waters of the United
States that could not lawfully be filled without a CWA
section 404 permit; and (d) that all of the above
unauthorized and unlawful filling activities, as well as
Banks’ land-levelling activities and his mechanized
removal of natural vegetation, were performed by Banks
and his agents to convert the sites to uplands for use in
Banks’ coconut palm nursery operations.
4. In light of these liability findings, the Court
enjoined Banks, his agents or employees from discharg-
ing additional fill material into his property on Big Pine
Key, Florida as more specifically described in the Court's
Memorandum Opinion. The Court scheduled a separate
1 Reported at 873 F. Supp 650 (S.D.Fla. 1995)
App. 42
hearing to adjudicate restoration issues and to determine
the civil penalty to be assessed against Banks for his
violations of the CWA.
5. The separate hearing on restoration and civil pen-
alty was held in Key West, Florida on July 24 and 25,
1995. As to those issues, the Court finds in favor of the
United States and against the Defendant, as follows:
RESTORATION
6. As previously found by this Court, these wet-
lands in their undisturbed condition function as valuable
habitat for many species of birds and other wildlife on
Big Pine Key, including endangered and threatened spe-
cies such as the Key deer, White Crowned pigeon, Lower
Keys marsh rabbit and Lower Keys mud turtle. These
interior freshwater wetlands also serve other important
functions, including acting as a filter and thereby enhanc-
ing water quality.
7. Reversal of the ecological injury inflicted by the
Defendant can likely be achieved by the careful, long-
term restoration contemplated in the restoration plan (the
“Restoration Plan”) prepared by Environmental Consul-
tant, Roy R. Lewis and proposed by the United States.
8. In general terms, the Restoration Plan submitted
by the United States consists primarily of restoring the
artificially elevated and damaged lots to their original
elevation by removing the fill placed in the Corps’ juris-
dictional wetlands (the “Restoration Areas,” as depicted
App. 43
in the Restoration Plan)? and allowing the excavated
areas to naturally re-vegetate from neighboring seed
sources. The Restoration Plan also contemplates that a
thin layer of organic mulch will be applied in appropriate
areas to enhance the successful return of hydrophytic
vegetation to the sites. The submitted Restoration Plan
further requires Banks to remove all existing coconut
palms, both those that are planted in the ground and
those that are planted in pots, from wetlands Restoration
Areas. The Restoration Plan contemplates a five-year
implementation schedule, during which time the Defen-
dant is required periodically to submit monitoring
reports. The Restoration Plan includes a number of other
provisions intended to facilitate the restoration of these
Lots.
9. During the July 1995 hearing, the Defendant
agreed and stipulated to the adoption in full of the Resto-
ration Plan submitted by the United States, with minor
modifications to the time-tables governing removal of
vegetation (which modifications are noted on an adden-
dum attached to the Restoration Plan). The Court has
? Banks was informed by the Corps in 1984 that most of Lot
IQ (with the exception of a small portion) was uplands which
could be utilized to continue his farming operations. Banks was
also told at the time that a small portion of the southeast corner
of Lot IR was then also considered uplands due to the presence
of slash pines. Although these representations are not legally
binding, the United States does not seek in its Restoration Plan,
and this Court does not order, the removal of fill (or the removal
of the Defendant’s house and its related improvements) from
most of Lot IQ, or from the southeast corner of Lot IR. The
specific areas of restoration are shown on the maps included in
the Restoration Plan.
App. 44
reviewed the Restoration Plan, and finds it to be practi-
cal, feasible, cost-effective and reasonable under the cir-
cumstances.
10. Therefore, the Defendant is ordered to imple-
ment, according to the schedule set forth therein, each
and every component of the Restoration Plan, a complete
copy of which is attached hereto, and which Restoration
Plan is hereby adopted in full as an order of this Court.
PENALTY
11. Clean Water Act section 309(d) provides that
violators of the Act “shall be subject to a civil penalty not
to exceed $25,000 per day for each violation.” 33 U.S.C.
§ 1319(d). Thus, in addition to restoration of the wet-
lands, the CWA requires that the Court impose a civil
Penalty upon the Defendant.
12. In determining the amount of a civil penalty, the
Court is directed by the statute to consider:
(1) the seriousness of the violation or viola-
tions,
(2) the economic benefit (if any) resulting from
the violation,
(3) any history of such violations,
(4) any good-faith efforts to comply with the
applicable requirements,
(S) the economic impact of the penalty on the
violator, and
(6) such other matters as justice may require.
CWA section 309(d), 33 U.S.C. § 1319(d)
App. 45
13. At the hearing on this matter, the Court heard
testimony and received evidence on the amount of the
penalty to be assessed. In light of the evidence presented
at the hearing, and taking into account the statutory
factors set forth above, the Court hereby orders that the
Defendant is to implement the Restoration Plan which
will result in an investment loss of approximately
$150,000 in past labor and $175,000 in past costs and a
potential loss on the sale of the existing vegetation due to
the compliance dates mandated by the Plan; pay the
entire cost of implementing the Restoration Plan -
approximately $37,500 and pay a civil penalty in the
amount of $10,000 to the United States Treasury, within
30 days from the date of this Order.
14. The Court’s previous injunction in this case — in
which the Defendant and his agents and employees were
enjoined from discharging additional fill materials into
the property owned by him on Big Pine Key, Florida, as
described in the Court’s previous Memorandum Opinion
and in this Order — continues in effect. The Court further
specifically orders the Defendant and his agents and
employees not to discharge or place any additional fill
materials, including but not limited to soil, dirt, organic
debris, palm fronds, stones, broken caprock, trash or
other fill materials, from whatever source and whether
intended for temporary storage or permanent placement,
anywhere on or in the subject wetland property without a
permit.
15. The Court retains jurisdiction to enforce the
terms of the Restoration Plan, the payment of the civil
penalty, and the enforcement of the injunctive relief
granted herein.
App. 46
DONE and ORDERED this 1st day of September,
1995 in Miami, Florida.
/s/ JAMES LAWRENCE KING
James Lawrence King
United States District Judge
cc: Lisa B. Hogan, AUSA
Barbara K. Bisno, AUSA
Martin McDermott, DOJ
William Baxter, ACOE
James Mattson, Esq.
App. 47
1983 Upland-
Wetland Line (red)
‘
Restoration
Stayed
>
fetland t . ; ne
Wetland Ling 2)
« asccpvni
“Complete
App. 48
‘4 0 TEL.
iP
App. 49
28 U.S.C.A. § 2462 Time for commencing proceedings
Except as otherwise provided by Act of Congress, an
action, suit or proceeding for the enforcement of any civil
fine, penalty, or forfeiture, pecuniary or otherwise, shall
not be entertained unless commenced within five years
. from the date when the claim first accrued if, within the
same period, the offender or the property is found within
the United States in order that proper service may be
made thereon.
(June 25, 1948, c. 646, 62 Stat. 974.)
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.