United States v. Holland

• Decision Date: 27 March 1974
• Docket Number: No. 73-623 Civ. T-K.,73-623 Civ. T-K.
• Citation: 373 F. Supp. 665
• Parties: UNITED STATES of America, Plaintiff, v. W. Langston HOLLAND, Individually, et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

373 F. Supp. 665

UNITED STATES of America, Plaintiff, v. W. Langston HOLLAND, Individually, et al., Defendants.

No. 73-623 Civ. T-K.

United States District Court, M. D. Florida, Tampa Division.

March 15, 1974.

Final Decree March 27, 1974.

COPYRIGHT MATERIAL OMITTED

Anthony J. LaSpada, Asst. U. S. Atty., Tampa, Fla., John Vance Hughes, Gen. Atty., U. S. Environmental Protection Agency Region IV, Atlanta, Ga., for plaintiff.

Alan C. Sundberg, St. Petersburg, Fla., for Geo. F. Young, Inc.

Thomas A. Clark and John W. Boult, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, Fla., for all other defendants.

MEMORANDUM OPINION

KRENTZMAN, District Judge.

This is an action brought by the United States to enjoin allegedly unlawful landfilling operations in an area known as Harbor Isle, adjoining Papy's Bayou, St. Petersburg, Florida. The government contends that the defendants have begun filling the waters of the bayou with sand, dirt, dredged spoil and biological materials without the permits required by 33 U.S.C. §§ 403, 407 and 1311(a). For relief the government requests a stoppage of further filling and a restoration of some mangrove wetland.

A hearing was held on December 21, 1973, to consider the government's motion for a temporary restraining order. After considering the evidence and argument of both parties the motion was granted. On December 26th the temporary restraining order was extended in full force pending further hearings.

On January 9, 1974, plaintiff's motion for preliminary injunction was heard. At that proceeding the following were established to the Court's satisfaction:

1. Defendants are engaged in developing a 281 acre tract of land known as Harbor Isle.

2. For the purposes of the preliminary injunction hearing the Court accepted defendants' determination that the mean high water line is one foot above sea level.

3. Tide data, visual observation and classification of vegetation established that a substantial number of tides exceed two feet above sea level.

(a) The United States Geological Survey tide gauge data indicated that 50-100 tides exceed two feet in the subject waters each year.

4. The parties stipulated to the accuracy of a land survey introduced by defendants. The survey and other evidence established that:

(a) Most of the property is interlaced with artificial mosquito canals containing water.

(b) The water in the mosquito canals is connected to Papy's Bayou.

(c) The elevation of much of the property is less than two feet.

5. Without a permit issued under authority of Title 33, United States Code, Sections 407 and 1344, defendants have discharged sand, dirt, dredged spoil and biological materials into the man-made canals and into mangrove wetlands which are periodically inundated by tides exceeding two feet above sea level.

6. Defendants would continue to discharge sand, dirt, dredged spoil and biological materials until the fill created has effectively displaced tidal waters, thereby eliminating the normal ebb and flow of tides over the subject property.

7. Continued discharge would result in irreparable injury. Loss and damage to the aquatic ecosystem of Papy's Bayou and to the commercial and sport fisheries which are dependent upon the estuaries of the Gulf of Mexico.

The Court felt these facts established acts of sufficient scope to warrant federal jurisdiction under the Federal Water Pollution Control Act, and of sufficient magnitude to justify a preliminary injunction. The motion for such an injunction was granted at the hearing. A brief order of injunction and findings was signed January 11, 1974.

Since the courts have not yet been faced with the question of whether federal jurisdiction over water pollution encompasses intertidal wetlands by virtue of the relatively new Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1251 et seq., this opinion will offer the rationale for the grant of jurisdiction.

The Federal Water Pollution Control Act Amendments of 1972

The government charged the defendants with past and continuing violations of Section 301(a) of the Federal Water Pollution Control Act Amendments of 1972 (FWPCA).¹ To sustain this allegation two showings had to be made. First it had to be established that the defendants' acts were such as to be prohibited if done in waters within federal jurisdiction, and second, that the waters receiving the impact of the prohibited conduct were indeed within that jurisdictional ambit.

Prohibited Activities

The FWPCA is an admirably comprehensive piece of legislation. It was designed to deal with all facets of recapturing and preserving the biological integrity of the nation's water by creating a web of complex interrelated regulatory programs. Section 301(a), the enforcement hub of the statute, however, is stated very simply. It provides that except as otherwise permitted within the Act "the discharge of any pollutant by any person shall be unlawful."² The plainness of the prohibition is matched by the breadth given the definition of a "discharge of a pollutant":

(A) Any addition of any pollutant to navigable waters from any point source,

(B) Any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source . . . other than a vessel or other floating craft. 33 U.S.C. § 1362(12)

"Pollutant" is in turn defined as

. . . Dredged spoil, solid waste, incinerator residue, sewage, garbage, sewer sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water. . . . Id. § 1362(6) (emphasis added)

And "point source" is

. . . any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. Id. § 1362(14) (emphasis added)

The evidence substantiates the defendants' admission that without a permit they have discharged and would continue to discharge from point sources, including dump trucks, drag lines, and bulldozers, materials defined as pollutants. Whether these pollutants were discharged into waters within federal jurisdiction was the key issue.

Jurisdiction under the FWPCA

Throughout the course of this litigation there has been considerable discussion about whether the mosquito ditches that connect with Papy's Bayou are "navigable" and much testimony about whether certain discharges of pollutants were above or below the "mean high water line." Argument was heard on the issue of whether federal jurisdiction under the FWPCA was limited to activities taking place in navigable waters below the mean high water line. Because the terms "navigability" and "mean high water line" have played such important parts in determining federal jurisdiction over water pollution in the past, the contention that these terms should be used in arguing jurisdiction under the FWPCA was not surprising.

For years the mainstays of the federal water pollution effort were Sections 10 and 13 of Rivers and Harbors Act of 1899.³ Section 10 makes it illegal to fill, excavate, alter or modify the course, condition or capacity of waters within the boundaries of a navigable waterway without authorization from the Corps of Engineers. Section 13 prohibits the deposit of refuse in, or on the bank of, a navigable waterway without a Corps of Engineers' permit. Both of these laws are by their terms limited to waters that are deemed navigable. Because of this limitation past discussion of federal jurisdiction over water pollution was largely a question of the navigability of the waterway being affected.

Why the Congress limited the Rivers and Harbors Act to navigable waters is no insoluble mystery. Although the Constitution does not mention navigable waters, it vests in Congress the power to "regulate commerce with foreign nations and among the several states."⁴ Since much of the interstate commerce of the 19th century was water borne, it was early held that the commerce power necessarily included the power to regulate navigation. Gibbons v. Ogden, 9 Wheat. 1, 22 U.S. 1, 6 L.Ed. 23 (1824). See also Hall v. DeCuir, 95 U.S. 485, 24 L. Ed. 547 (1977); Veazie v. Moor, 14 How. 568, 55 U.S. 568, 14 L.Ed. 545 (1852); Norris v. City of Boston, 48 U. S. (7 How.) 282 (1849). To make this control effective Congress was deemed empowered to keep navigable waters open and free and to provide sanctions for interference. See, e. g., Gilman v. Philadelphia, 3 Wall. 713, 70 U.S. 713, 18 L.Ed. 96 (1865). The Rivers and Harbors Act of 1899 was an exercise of that power.

Whether Congressional power in 1899 was limited by judicial interpretation to navigable waters is now only of historical significance. At the time of the Act's passage, "commerce" was still nearly synonymous with "transportation"⁵ and the term "interstate" was largely used in a geographical sense.⁶ The extant case law relied upon the tenth amendment as a restraint upon the federal commerce power. The effects intrastate activity might have on commerce outside the state was of little concern. See Oliver Iron v. Lord, 262 U.S. 172, 43 S.Ct. 526, 67 L.Ed. 929 (1923); Hammer v. Dagenhart, 247 U. S. 251, 38 S.Ct. 529, 62 L.Ed. 1101 (1918).

Although the reach of federal power under the commerce clause widened dramatically in the twentieth century, the nineteenth century legacy of "navigation" lingered to limit federal control over water pollution. Since Congress had clearly limited the Rivers and Harbors Act to navigation, any subsequent judicial broadening of jurisdiction under the statute of necessity had to be in the form of expanding the definition of "navigability."

Starting with the basic definition of waters that

. . . form in their ordinary condition by themselves, or by

...