PFZ Properties, Inc. v. Train, Civ. A. No. 74-1534.

• Decision Date: 30 April 1975
• Docket Number: Civ. A. No. 74-1534.
• Parties: P. F. Z. PROPERTIES, INC., Plaintiff, v. Russell E. TRAIN et al., Defendants.
• Court: U.S. District Court — District of Columbia

393 F. Supp. 1370

P. F. Z. PROPERTIES, INC., Plaintiff, v. Russell E. TRAIN et al., Defendants.

Civ. A. No. 74-1534.

United States District Court, District of Columbia.

April 30, 1975.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

George L. Edgar, Fred F. Fielding, Washington, D.C., for P. F. Z. Properties, Inc.

Carl Eardley, Washington, D.C., for Commonwealth of Puerto Rico.

John E. Varnum, Thomas C. Lee, Dept. of Justice, for Train & Callaway.

David G. Hawkins, Washington, D.C., Pedro J. Saade Llorens, Hato Rey, P.R., for Juan Jose Calderon, Santiago Quinones, Haydee Romero Clemente, Ramon Ayala Tapia, Ramona Cruz DeJesus, Ernesto Calderon Rivera, Marcos Moreno Ayala, Andres Perez Sanjurjo, Carmen Clemente Calderon, Rafael Franqui Romero, Nicolasa Escalera and Rafael Verdejo Escalera.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

JOHN H. PRATT, District Judge.

Introductory Statement

On October 21, 1974, plaintiff brought suit against the Administrator of the Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (Corps) seeking declaratory and injunctive relief. Plaintiff seeks a declaratory judgment that the defendants have acted in violation of the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq., and the Puerto Rican Federal Relations Act, 48 U.S.C. § 731 et seq., in attempting to exercise jurisdiction over certain waters on property owned by plaintiff at Vacia Talega near San Juan, Puerto Rico. Plaintiff proposes to develop these acres, now covered primarily by mangrove wetlands, into an apartment-hotel-condominium complex, known as the "Vacia Talega Project."

This suit stems from the issuance by the EPA of a Notice of Violation and Order on September 19, 1974, informing plaintiff that certain of its preliminary development activities were in violation of the Federal Water Pollution Control Act (FWPCA), and directing plaintiff to cease its discharges of fill and biological material into waters of the United States without a permit from the Corps.

On October 21, 1974, plaintiff filed motions for a temporary restraining order and preliminary injunction seeking a declaratory judgment that the defendants did not have jurisdiction over the Vacia Talega waters. Plaintiff also sought injunctive relief proscribing the defendants from "seeking civil or criminal penalties" against plaintiff for its activities, and from "seeking to enforce" the Notice of Violation and Order.

On October 21, 1974, a hearing was held on plaintiff's motion for a temporary restraining order, and that motion was denied. On October 29, 1974, a hearing was held on plaintiff's motion for a preliminary injunction. The Court denied this motion and denied defendants' motion to dismiss.¹ A nonjury trial on the merits of the complaint was held on January 20, 1975 through January 24, 1975.

The parties addressed themselves to two main issues at trial. The first is whether the waters of the Vacia Talega property are "waters of the U. S." within the meaning of the FWPCA. If so, the federal regulatory jurisdiction extends to those waters and the EPA's Notice of Violation and Order was lawfully issued. If not, the waters of the Vacia Talega are beyond the federal regulatory powers, and thus the EPA acted outside its statutory authority in issuing its Notice of Violation and Order. The second issue is whether the Puerto Rican Federal Relations Act, 48 U.S.C. § 731 et seq., precludes application of the FWPCA in Puerto Rico to waters not navigable within the traditional definition of navigable waters of the U. S., i. e., waters not navigable in fact.

Plaintiff and plaintiff-intervenor sought at trial to show that the defendants' actions in asserting jurisdiction over the Vacia Talega mangrove wetlands were arbitrary, capricious, or otherwise not in accordance with law for numerous reasons, including the present non-navigability of waters within the Pinones Vacia Talega Mangrove Forest, the insignificant likelihood that discharge of pollutants would reach navigable waters, and that the ecological impact of the proposed project would not adversely affect or destroy the biological integrity of navigable waters near the construction site.

The defendants rely on three grounds in asserting jurisdiction over the mangrove wetlands. First, they assert that the Vacia Talega mangrove wetlands are navigable waters of the U. S. by virtue of an unnamed canal, which was used for commercial purposes in the past, extending to the northeast through the Vacia Talega project site from the Canal de Tierra. Second, they assert that the waters of the Vacia Talega mangrove wetlands are "waters of the U. S." within the meaning of the FWPCA, because those waters flow to the Laguna de Pinones and, thus, are a potential source from which pollutants may flow to the Laguna de Pinones and the ocean. Third, they assert that the Vacia Talega mangrove wetlands are "waters of the U.S." within the meaning of the FWPCA by virtue of the biological productivity of these mangrove wetlands and their vital contribution to the biological vitality of the lagoons and the Atlantic Ocean.

The pleadings, pretrial stipulations, and evidence presented at trial establish the following.

FINDINGS OF FACT

1. Plaintiff, P. F. Z. Properties, Inc. (PFZ) owns 1,358.65 cuerdas (1 cuerda is approximately 1 acre) located in the Torrecilla Ward of the Municipality of Loiza, approximately fourteen miles east of San Juan, Puerto Rico.

2. PFZ's property is at the eastern end of a large mangrove wetland of approximately 3,500 cuerdas commonly known as the Torrecilla-Pinones-Vacia-Talega Mangrove Forest.

3. PFZ plans to develop 266.41 of the 1,358.65 cuerdas into an apartment-hotel-condominium complex, known as the "Vacia Talega Project."

4. Approximately 170 cuerdas of the 266.41 cuerdas on the Vacia Talega Project site are presently mangrove wetlands.

5. After lengthy hearings in which EPA was a participant, the Planning Board of the Commonwealth of Puerto Rico (Planning Board) approved on July 20, 1974, upon recommendation of the Environment Quality Board of Puerto Rico (EQB), an Alternate Preliminary Development Plan for the development of the 266.41 cuerdas comprising the Vacia Talega project site, subject to certain conditions including the requirement that construction plans be submitted within one year.

6. Beginning about August 28, 1974, plaintiff employed a contractor to conduct soil borings within the 266 cuerdas of the Vacia Talega project site in order to obtain necessary information to develop construction plans for the project for submission to the Planning Board. The soil borings were required to determine soil properties in order that structural foundations for buildings and utilities could be properly designed. Continuing through September 20, 1974, the contractor cleared or cut several 75-100 foot wide paths through the mangrove vegetation in order to transport equipment to the drilling sites for the core borings. Several paths were cleared with a bulldozer and others with a drag-line. This work necessarily entailed the deposit of sand, rocks, and other dredged material into the waters of the Vacia Talega Project site.

7. On August 23, 1974, the local director of EPA sent a letter to the Executive Director of the EQB of Puerto Rico which indicated that EPA would undertake an investigation to determine whether it should seek an injunction from the U. S. District Court in San Juan if physical activity within the Vacia Talega project site were undertaken without a dredge and fill permit from the Corps. On August 27, 1974, the Executive Director of the EQB sent a letter to the local director of EPA which indicated his belief that activities conducted within the Vacia Talega project site would require a permit from the Corps, since a good portion of the project site was periodically flooded by high tides.

8. On September 6, 1974, the Corps sent a letter to plaintiff which indicated that the Vacia Talega project site was a low marshy area which "could be subject to the Corps regulatory jurisdiction under Section 404 of the Federal Water Pollution Control Act Amendments of 1972 (P.L. 92-500), and should you propose to include water access for the areas or to construct piers, bulkheads, or other water oriented structures, it would also be subject to our regulatory jurisdiction under Section 10 of the River and Harbor Act of 1899." The letter requested information in order to determine whether a dredge and fill permit would be necessary.

9. On September 13, 1974, EPA's local director was advised by the Executive Director of the EQB of Puerto Rico the PFZ was performing certain work at the Vacia Talega project site.

10. On September 15, 1974, EPA's local director initiated an investigation of the activities which were being conducted at the Vacia Talega project site. The local director inspected and photographed the work being performed from the ground and from a helicopter. On September 17, 1974, representatives of EPA and the Corps inspected the work site.

11. On September 19, 1974, the EPA issued plaintiff a Notice of Violation and Order informing plaintiff that certain of its preliminary development activities were in violation of the FWPCA, and directing plaintiff to cease its discharges of fill and biological material into waters of the U. S. without a permit from the Corps pursuant to Section 404(a) of FWPCA, 33 U.S.C. § 1344(a). The EPA Order² was issued pursuant to Section 309(a)(3) and (4) of the FWPCA, 33 U.S.C. § 1319(a)(3), (4).

12. Immediately upon service of EPA's September 19, 1974 Order, plaintiff stopped all activities at the Vacia Talega project site.

13. On January 14, 1975, the Corps issued a determination of navigability for the Vacia Talega-Pinones mangrove wetland, which includes the mangrove forest on the Vacia Talega project site. The Corps therefore concluded that the mangrove forest was within its...