United States v. Weisman, 79-137-Civ-Oc.

• Decision Date: 15 May 1980
• Docket Number: No. 79-137-Civ-Oc.,79-137-Civ-Oc.
• Citation: 489 F. Supp. 1331
• Parties: UNITED STATES of America, Plaintiff, v. Leonard M. WEISMAN, an Individual and Hilger & Ray Engineer Assoc., Inc., a Florida Corporation, Defendants.
• Court: U.S. District Court — Middle District of Florida

489 F. Supp. 1331

UNITED STATES of America, Plaintiff, v. Leonard M. WEISMAN, an Individual and Hilger & Ray Engineer Assoc., Inc., a Florida Corporation, Defendants.

No. 79-137-Civ-Oc.

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

May 15, 1980.

COPYRIGHT MATERIAL OMITTED

Ernst D. Mueller, Asst. U. S. Atty., Jacksonville, Fla., for the United States of America.

Barry S. Sinoff, Jacksonville, Fla., William J. Roberts, Tallahassee, Fla., for Weisman.

Dock A. Blanchard, Ocala, Fla., for Hilger & Ray.

OPINION

CHARLES R. SCOTT, Senior District Judge.

In 1979, the defendant property owner, Leonard M. Weisman, constructed a dirt fill roadway on recently purchased property located adjacent to Kings Bay on the Crystal River in Florida. The new roadway led from a state road on the western boundary through a lowland forest, crossing several small creeks, to Weisman's new homesite, a beautiful, secluded point of land at the eastern extreme of the property overlooking the river. The United States Army Corps of Engineers (the Corps) opposed this project and had issued no permit for construction.

The plaintiff, United States of America, brought this action for civil penalties and injunctive relief, alleging that the defendants' filling and construction activities have and will: (1) alter and modify the course, location, condition, and capacity of the navigable waters of the United States in violation of Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403, and (2) result in the discharge of fill material into waters of the United States in violation of Sections 301(a) and 404 of the Federal Water Pollution Control Act, as amended, 33 U.S.C. §§ 1311(a) and 1344 (FWPCA). The plaintiff asks the Court to impose civil penalties and to order that the property in question be restored to its original condition before the commencement of defendants' filling and construction activities. This action was commenced on December 20, 1979, with a motion for temporary restraining order, supported by affidavits, and a civil complaint accompanied by an application for preliminary injunction. The Court granted the temporary restraining order. On February 20, 1980, the plaintiff moved the Court to enter a contempt decree against defendant Weisman for violation of the temporary restraining order. After a two-day hearing at the end of February 1980, the Court issued its opinion and order denying the government's motion for contempt and granting the preliminary injunction.¹ The evidence received with regard to the preliminary injunction was made a part of the record at the trial on the merits on March 31, 1980, pursuant to Rule 65(a)(2), Fed.R.Civ.P. Based upon the findings and conclusions set forth below, the Court holds that the defendants violated both Section 10 of the Rivers and Harbors Act and Sections 301(a) and 404 of the FWPCA.

Defendant Weisman is the owner² of a rectangular tract of land situated in Section 29, Township 18 South, Range 17 East, Citrus County, Florida, bounded on the west by State Road 44 and on the east by the Crystal River (App. A). The north and south boundaries form the long sides of this relatively narrow rectangle. Approximately 375 feet wide and over 2300 feet long, the tract consists of roughly 20 acres. Defendant Weisman purchased the property early in 1979. Prior to the filling and construction activities which are the subject of this action, the property consisted of about 5.5 acres of relatively high ground or upland and approximately 14.5 acres of relatively low, forested terrain. This terrain is part of a larger even-aged, flat-top, flood-plain wetland forest system which extends for some distance south of the Weisman property, bounded on the west by State Road 44 and on the east by the Crystal River. A meandering tidal creek flows into and across the Weisman property from a point on the Crystal River south of the Weisman homesite, west and north until its path is lost among tiny, spring-fed tributaries. During dry periods and low tides, water may flow from northeast to southwest. High tide causes the water to back up, reversing the flow and regularly flooding the lowest portion of the Weisman property to an elevation of about 1.5 feet above mean sea level. During periods of exceptionally high water, the creek overflows its bed and floods the entire adjacent lowland area.³ The Crystal River is a navigable-in-fact body of water at Kings Bay and enters the Gulf of Mexico just five miles downstream.

As noted above, the property is not all lowland. The homesite at the eastern extreme is located on upland terrain. In the western portion of the property, a narrow "ridge" of relatively high ground (more than two feet above sea level) runs northsouth about 400 feet east of and parallel to State Road 44. Also, the northern boundary of the property parallels a pre-existing, unsurfaced, fill roadway which, of course, is high ground.

This old roadway, as it is referred to in this opinion, was constructed some time before defendant Weisman purchased the property. It runs from State Road 44 on the west for a distance of some 1900 feet to the upland homesite on the eastern end of the Weisman property. It was created by the placement of dredged spoil material from a borrow ditch or canal located immediately north of and parallel to the old roadway. Though narrow and overgrown in its present condition, the old roadway provides single-lane access to the upland homesite and was, in fact, used for this purpose from time to time by cement trucks and other vehicles during the construction of defendant Weisman's new home. The old roadway and canal physically separate the Weisman property from the neighboring property to the north, which is being developed for single-family homesites. There are no culverts under the old roadway so that its raised bulk of fill material also acts as a dike. The northern boundary of the property is just north of the canal so that both canal and roadway are a part of the Weisman property.

Some time in 1979, defendant Weisman decided to build a new roadway near the southern boundary of the property, from State Road 44 to his homesite. He hired defendant Hilger & Ray Engineer Associates, Inc. (Hilger & Ray) to design the new roadway and to obtain all the necessary permits. In May 1979 defendant Weisman, through Hilger & Ray, submitted a joint permit application to the Jacksonville District of the Corps and the Florida Department of Environmental Regulation,⁴ seeking permission to construct a roadway 18 feet wide and 1700 feet long, with an average depth of three feet, through the lowland portion of the Weisman property (PX-1).⁵ The proposed new roadway began at State Road 44 and ended just a short distance from the termination of the old roadway at the upland homesite; however, the drawings of the project which Hilger & Ray submitted did not depict the old roadway.⁶ The Corps published a notice of this project on June 1, 1979, requesting comment (PX-2).

On June 21, 1979, Richard Clutter, a biological technician for the Corps, inspected the area of the proposed project. His inspection led him to recommend that the proposed roadway not be permitted because of the availability of the old roadway leading to the same location and because of the biological harm that would result from the construction of the new roadway. On July 23, 1979, Joseph Bacheler, Clutter's supervisor and a biologist, discussed the proposed project with both defendants and suggested that the proposed road not be constructed for the same two reasons. Subsequently, defendant Weisman, through James P. Eyster, his real estate broker, wrote to the Jacksonville office of the Corps explaining that the new roadway was needed to provide "the privacy and natural look" which the defendant desired. The letter went on to state that defendant Weisman was willing to "put in as many additional culverts that are needed or necessary to effectively provide for any water flowage." (DX-D). On August 20, 1979, Hilger & Ray submitted a revised project design. The revision included new sketches which showed that the proposed roadway fill would cross the meandering tidal creek and the mean high water line⁷ in several places. (PX-15). The revised sketch still did not depict the old roadway, however.

The defendants' first written notification that a permit would not be issued came on October 17, 1979, in a letter from the Corps to Hilger & Ray and Weisman. The letter clearly indicated that the Corps' Tampa Area office had recommended that the permit not be issued and that the old roadway be modified and used instead. The letter continued:

If you disagree with their recommendations, it is requested that you specifically demonstrate the following:

(a) That the proposed activity is water-dependent and no alternate sites are practical.

(b) That the proposed project will not cause permanent unacceptable disruption of the aquatic ecosystem.

It will be very difficult for us to approve your proposed project over the objections of the above offices. We request that you advise us of your decision by November 30, 1979. If we do not receive a response by the above date, then we will assume that you have no further interest in obtaining a Department of the Army permit application, we will deactivate your file, and this letter will constitute final action by the Department of the Army.

(PX-16). Warren E. Hilger, P.E., responded to the Corps' letter on November 29, 1979. He indicated that the new road was desired because it would afford the owners greater seclusion from the residential property to the north than would the old roadway. He disagreed with the proposition that permanent disruption of the aquatic ecosystem would result from the installation of the new roadway:

The facts of the matter are that throughout most of the year, the area is entirely dry and there are no flowing streams on the property. In those areas which

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