The opinion of the court was delivered by: COHEN
In this environmental protection action plaintiff, United States of America, seeks a permanent restraining order, enjoining defendant, Stoeco Homes, Inc., from conducting dredge, fill and construction operations in an area of Ocean City, New Jersey, bordered by Bay Avenue, Tennessee Avenue, Spruce Road and the Back Thorofare sector of the Intracoastal or Inland Waterway.
This Court has jurisdiction, pursuant to the provisions of 28 U.S.C. §§ 1333 and 1345 and 33 U.S.C. §§ 403, 406, 407, 411 and 413.
Plaintiff contends that this area is part of the navigable waters of the United States and that since at least April 23, 1971, defendant has conducted these operations, without the prior approval of the United States Army Corps of Engineers (ACOE) and the Secretary of the Army, in violation of 33 U.S.C. §§ 403 and 407. It is further alleged that these operations constitute a public nuisance in violation of federal common law and that they have irreversibly altered the natural condition of the development site and irreparably damaged the environment.
Defendant responds that it has not conducted its activities within the navigable waters of the United States, and, alternatively, that even if it has operated in navigable waters, it has not violated federal law because its operations were conducted in an area shoreward of federally established or federally approved New Jersey State harbor lines where, it contends, a permit is not required. Defendant also denies that it has irreversibly altered the natural condition of the area or irreparably caused any harm to the environment. The defenses of estoppel and laches are also asserted against the Government, as well as unconstitutional violations of equal protection in the inconsistent enforcement of the statutes.
The facts out of which this controversy arose are as follows:
Sometime in 1965 defendant, a corporation under the laws of the State of New Jersey, commenced dredging, filling and construction activities, including bulkheading, road construction and housebuilding, in the above-described area of Ocean City, New Jersey. This area, which defendant designated as Plan No. Six of Stoeco Riviera (Plan Six), is a lagoon development comprised of several man-made building lots and nine basically similar finger lagoons which perpendicularly radiate from a main channel known as South Harbor. All of these lagoons, including South Harbor, were artificially created by defendant.
South Harbor, which was dredged in 1955, is approximately 7 to 11 feet deep at low water, 125 feet wide and about one-half a mile in length; it connects at its northwest extension with Back Thorofare and terminates at its southeast extension perpendicularly to Bay Avenue.
That portion of Plan Six which lies to the northeast of South Harbor (the Northeast Sector) encompasses six finger lagoons and seven building lots developed by defendant between 1965 and 1968; and, except for occasional maintenance dredging and the construction of houses and dock facilities, it is now largely completed.
That portion of Plan Six which lies to the southwest of South Harbor (the Southwest Sector) encompasses two and one-half building lots, the three remaining finger lagoons and a large rectangular area (the Rectangle) which defendant intends to convert into three building lots and two lagoons. The proposed development of the Southwest Sector contemplates the creation of five and one-half fairly uniform, artificially-filled building lots, essentially parallel to, and separated by, five completely bulkheaded, man-made lagoons perpendicularly radiating from South Harbor in the northeast and terminating at Tennessee Avenue in the southwest. The actual development of this sector was commenced sometime after March 1971. On April 23, 1971, and on numerous occasions thereafter, officials of the ACOE directed defendant to cease and desist its development activities. Notwithstanding these directives, defendant continued to develop the Southwest Sector until this Court on September 11, 1972, enjoined further development pending disposition of the present litigation.
The present status of this development is as follows:
Parallel to Bay Avenue and adjacent to the one-half building lot which separates it from Bay Avenue is Marcus Harbor, a completely dredged lagoon approximately 125 feet wide, 550 feet long and 9 feet deep at low tide. It has a bulkhead on its southeast exposure to the one-half building lot and a bulkhead on its northwest exposure to a full building lot. At a right angle to the latter bulkhead there exists another bulkhead which runs in a northwesterly direction along approximately ninety percent of the lot's South Harbor exposure.
Immediately to the northwest of this lot is Tonga Harbor, a completely dredged but as yet unbulkheaded lagoon, approximately 125 feet wide, 550 feet long and 11 feet deep at low tide. On its northwest, Tonga Harbor is bordered by the Rectangle, which extends northwestward to Cayman Harbor -- the northwesternmost lagoon in the Southwest Sector. Cayman Harbor has a narrow backward width and a width of about 187 feet at its mouth; it is approximately 550 feet long and, at low tide, has a depth of 5 feet near its mouth. It is bulkheaded along its northwest exposure to a building lot which fronts on Back Thorofare, and along its southeast exposure to the Rectangle there is a bulkhead which perpendicularly connects at its northeast terminus with a ...