# Petition for Writ of Certiorari — Banks v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1541%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1998 - **Citation:** 522 U.S. 1075 ## Text annem Supreme Court t1¢ de ig * 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.) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1541%3A1. Public record. Not legal advice.