The opinion of the court was delivered by: GERRY
This matter is before the court on the Government's request for a preliminary injunction. It wants to prevent the defendants from engaging in fill activities at the Diamond Beach site in Cape May County, New Jersey, which the Government contends contains federally regulated wetlands.
The Government is proceeding under the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. [hereinafter "Clean Water Act"] and the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. § 403 [hereinafter "Rivers and Harbors Act"] and § 407 [hereinafter "Refuse Act"].
A hearing was held on November 9, 15 and 17, 1983. The court had previously issued a temporary restraining order on October 24, 1983 barring defendants from any further fill activities on the site until the matter could be heard.
The following constitutes this court's findings of fact and conclusions of law.
A. The Defendants and Their Relationship to the Diamond Beach Site
Robert Ciampitti is an individual residing within the District of New Jersey. [Robert Ciampitti Deposition (hereinafter R.C. Dep.), p. 4; Tr. 3, p.24.] He and Pacific Four Corporation [hereinafter "Pacific Four"], a corporation organized and existing under the laws of Pennsylvania and doing business within the District of New Jersey, are the developers of the site. [R.C. Dep., pp. 11-13.]
Bruce Nicholas Ciampitti, Robert's brother and the largest single owner of parcels of land at the site, gave Robert a power of agency for all land at the site in the name of Bruce Nicholas. [R.C. Dep., pp. 59, 110; Tr. 3, pp. 60-61, 82.] [Bruce Ciampitti holds title to the land under the name Bruce Nicholas. R.C. Dep., p. 30.]
In addition, Robert Ciampitti was designated agent and representative for Pacific Four and all individual lot owners at the site to secure all necessary approvals to install improvements at the site. [R.C. Dep., pp. 12, 71, 74; Tr. 3, pp. 45, 80, 81.] Those individuals are paying Robert Ciampitti for his efforts on their behalf, [R.C. Dep., p. 76]; and in some instances, Ciampitti has directed and paid for filling activities at the site himself, hoping later "to strike a deal" with the actual property owners. [R.C. Dep., p. 91; William Albrecht Deposition (hereinafter W.A. Dep.) pp. 19, 24.]
Albrecht and Heun Corporation is the construction company responsible for placing and grading fill on the site under the direction of Robert Ciampitti. [R.C. Dep., pp. 144, 151; W.A. Dep., pp. 19, 24.] Robert Ciampitti also contracted with Gerald E. Speitel Associates, a consulting engineering firm [hereinafter "Speitel"], to work for him. [Tr. 3, p. 137.]
B. Activities at the Site
As early as 1980, Robert Ciampitti was made aware of federal wetlands regulations by his consultants, Speitel. He was aware that in certain areas along navigable waterways, the U.S. Army Corps of Engineers [hereinafter "the Corps"], had jurisdiction over those areas through their regulations. [R.C. Dep., pp. 60-62; Tr. 1, pp. 103, 105; Tr. 3, pp. 100, 113-137, 160-161.]
Specifically, he was told by Speitel that there was possible state and federal jurisdiction over wetlands on the site. The Corps, which was summoned to the site by Gary Franklin, a Speitel employee, told Speitel that a federal permit to fill that area was unlikely. Despite those warnings, Ciampitti directed Speitel to develop engineering plans for the site and told Speitel that he would possibly be filling wetland areas. [Tr. 1, pp. 103-105; Tr. 3, pp. 100, 113, 137, 147-149, 160-161.]
Robert Ciampitti did nothing between 1980 and 1983 to contact the Corps about its jurisdiction over the site. He assumed that if the Corps had jurisdiction, it would so advise him. [R.C. Dep., pp. 72-73; Tr. 3, pp. 100-101.] Furthermore, he did not apply to the Corps for a wetlands permit, because in March 1983, he became aware of a 1907 land grant held by the previous owners of the site which provides:
The bearers of the title of the property within this grant have the right to dredge, fill, reappropriate lands under water, construct wharfs, marinas, inlets, buildings, or anything that they deem appropriate to their private and exclusive use.
[R.C. Dep., pp. 102-103; Tr. 3, pp. 76, 153; Defendant's Trial Exhibit 14.]
In the summer of 1983, after learning of this grant, defendant decided to develop portions of the site which he was aware were designated as New Jersey wetlands and possible federal wetlands, believing that the grant gave him authority to do so. [R.C. Dep., p. 128; Tr. 3, pp. 97, 153.] In particular, he had a fifty foot pipe and a tide gate placed on the northwest corner of the site in order to keep debris from coming in and going out; to allow storm water to run off the site; and to prevent tidal water from coming onto the site. [R.C. Dep., pp. 115-118; Tr. 3, p. 102.]
These activities were noted by Robert E. Eckhardt from the Corps' Philadelphia District, Regulatory Branch for the Surveillance and Inspection Section, who inspected the site on September 2, 1983. [R.C. Dep., p. 138; Robert Eckhardt Affidavit (hereinafter R.E. Aff.) para. 7; Tr. 1, p. 35.]
He observed the following:
a. Approximately 3,000 feet of roadway had been constructed in areas he believed to be wetlands contiguous to Jarvis Sound on the site.
b. The roads were constructed of sand hauled to the site.
c. The fill consisted of sand.
d. A tide gate had been constructed in a tidal creek and stopped tidal flow into large portions of the area designated as wetlands at the site.
e. The tide gate is a type that causes wetlands to be drained of water.
f. The "wetlands" impounded by the tide gate showed signs of deterioration; e.g., vegetation was becoming dry.
g. Storm sewers and outlets had been installed in certain portions of the roads.
[R.E. Aff., para. 9; Tr. 1, pp. 40-45, 49.]
The fill material and tidal gate were placed in federally designated wetlands as depicted on Government Trial Exhibit RR-1. [R.E. Aff., para. 10; John Olson Affidavit (hereinafter J.O. Aff.), para. 6-7; Tr. 1, pp. 38-49.]
Eckhardt told Ciampitti that the site contained tidal wetlands and directed Ciampitti to cease further fill activities in those areas. [R.C. Dep., p. 139; R.E. Aff., para. 14; Tr. 1, pp. 50-51.] Ciampitti told Eckhardt that he would stop the fill activity, [R.E. Aff., para. 15], but he did not stop because he did not believe he had been properly notified by an appropriate official of the Corps. [R.C. Dep., pp. 7-24.] He subsequently directed Albrecht and Heun to continue filling in roads in the designated wetlands area. [R.C. Dep., p. 144.]
On September 13, 1983, Eckhardt returned to the site and observed approximately three dump trucks and two bulldozers hauling and spreading fill material into the designated wetlands. [R.E. Aff. para. 18; Tr. 1, pp. 56-57.] Eckhardt advised the bulldozer operator to stop filling in wetlands. The operator, Mr. Albrecht, made a telephone call and said he would stop work. [R.E. Aff., para. 19; Tr. 1, pp. 57-58.]
On September 15, 1983, the District Engineer of the Corps issued a "cease and desist" letter directing Robert Ciampitti to stop fill activities in the wetlands and remove the tide gate. [R.E. Aff., para. 21; Tr. 1, p. 107.] On September 16, 1983, this "cease and desist" letter was delivered by Robert Eckhardt and John Olson of the Corps to the office of James Webb, Jr., Esquire, the attorney for Robert Ciampitti. On that date, John Olson advised Webb of the location of the wetlands on the site and explained to him the scope and nature of the violations there. [R.E. Aff., para. 22; Tr. 1, pp. 60, 64, 111; Tr. 3, p. 104.] Robert Ciampitti became aware that the cease and desist letter had been issued against him for filling federal wetlands, and that the letter had been served upon James Webb, his attorney. [R.C. Dep., p. 146; Tr. 3, p. 104.] Nonetheless, he did not cease filling activities at the site. [Tr. 1, p.72; Tr. 3, p. 1031.] He directed Albrecht and Heun to continue filling at the site. He did not contact the Corps and disregarded the cease and desist letter. [R.C. Dep., pp. 147-151; Tr. 3, pp. 103-106.]
On September 16, 1983, John M. Olson, Supervisory Biologist serving as the Acting Chief of the Application Section of the Philadelphia District of the Corps, inspected the site and observed that approximately five acres of earthen fill had been placed on wetlands and in tidal creeks at the site, and that a pipe with a tide gate had been installed in one tidal creek. [J.O. Aff., para. 6.] Olson determined during his September 16, 1983 inspection that wetlands were located on the site and based that conclusion on:
a. The presence of tidal creeks flowing into the site;
b. The presence of existing vegetation adapted for growth in saturated or inundated soils, including salt-marsh cordgrass (Spartina alterniflora), salt-meadow cordgrass (S. patens), salt grass (Distichlis spicata), black grass (Juncus gerardii), marsh elder (Iva frutescens), sea lavender (Limonium carolinianum) and saltwort (Salicornia sp.);
c. Saturated soil conditions; and
d. The presence of standing water over portions of the site.
He returned to the site on September 20, 1983 and observed bulldozers working on upland areas adjacent to the wetlands. He told the bulldozer operator which areas were wetlands and could not be filled, and which areas were uplands. [J.O. Aff., para. 14.]
On October 13, 1983, Robert Eckhardt returned to the site and observed that, since his last visit to the site, additional fill material had been placed in the wetlands as depicted on Government Trial Exhibit RR-3. He also observed a bulldozer spreading fill on one of the roadways which had previously been constructed in the wetlands. [J.O. Aff., para. 25; Tr. 1, p. 70.] See GRR-3.
On October 20, 1983, Robert Eckhardt returned to the site and observed that, since his last visit to the site, fill material had been placed in additional areas of the wetlands as depicted on Government Trial Exhibit RR-4. He also observed a tractor-trailer dump truck discharging fill in the wetlands. [R.E. Aff., para. 28; Tr. 1, p. 72.] See GRR-4.
C. The Site and Its Development
The portion of the Diamond Beach site involved in this controversy is described in Lower Township tax records simply enough as Blocks 696, 701, 706, 716, 721, 726 and 731. [Complaint para. 19; R.E. Aff., para. 12; J.O. Aff., para. 16; R.C. Dep., pp. 12, 71, 74; Tr. 3, p. 23.] It is a tract of land located along New Jersey Avenue, which is known as Park Boulevard in Lower Township [Tr. 2, p. 105], between West Jefferson ...