onward. Webb also stated that the Corps could not stake out the wetlands on the site the following day, as had been previously agreed to by John Olson and James Webb, Esquire. [R.E. Aff., para. 24; Tr. 1, p. 120; R.C. Dep., p. 158.]
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 Avenue and Madison Avenue. [Tr. 1, p. 39.] It is bounded on the West by East Railroad Avenue and Jarvis Sound.
A railroad embankment is located on the site parallel to East Railroad Avenue. [Tr. 1, pp. 45-56.] It was built in approximately 1924. [Tr. 3, pp. 113-114.] In a 1957 photo of the site, [D-1], remnants of a road running next to the railroad right-of-way can be seen. [Tr. 3, pp. 123, 67.]
Sometime prior to 1955, the southern portion of the site was used as a dumping ground. [Tr. 3, pp. 39-40.] As of 1957, mosquito ditches appeared on the property. [Tr. 3, p. 125.] Sometime between 1957 and 1962, a driving range was constructed on the site which was no longer in use as of 1969. The vegetation has grown back. [Tr. 3, pp. 126-127.]
Furthermore, the railroad was no longer used as of 1962. [Tr. 3.] Sometime between 1962 and 1969, a breach appeared in the railroad embankment. It has not been firmly established whether the breach was created as a result of a major storm that occurred in 1962 or was man-made. [Tr. 1, p. 150; Tr. 3, pp. 117, 130.]
Most important, in 1975 the federal government claimed jurisdiction over the wetlands under the Clean Water Act. In 1979 or early 1980, subsequent to the federal claim of jurisdiction, Memphis, Rochester and Richmond Avenues, and part of Park Boulevard were filled. All the evidence of record indicates that at the time of this first fill activity by the defendant the site could be characterized as wetlands and was subject to tidal flow. [ See infra at slip op. 8-9; Tr. 2, p. 19.]
Following that, in 1982, Albrecht, at Ciampitti's direction, filled Railroad, Raleigh, Madison, South Station and Austin Avenues. [2D, p. 20.] A water well was installed by the Wildwood Utilities Authority between South Station and Raleigh, east of Park. In addition, those areas depicted on Government Exhibit RR were filled, and the tidal gate was installed. [Tr. 3, p. 74.]
Defendant plans to develop the entire Diamond Beach site to include approximately 1,500 single family dwellings, 6-8 multi-unit dwellings, a motel facility and a shopping center. [R.C. Dep., p. 132; Tr. 3, p. 83.] To date, none of the defendants has either applied for or obtained a permit under the Clean Water Act, [R.E. Aff., para. 31; J.O. Aff., para. 15]; the Rivers and Harbors Act [ id. ]; or the Refuse Act [ id. ].
D. The Presence of Wetlands on the Site
On the basis of the evidence thus far presented to the court, it concludes that federally regulated wetlands exist on the Diamond Beach site as designated on Government Trial Exhibits RR-5 and 100-102. [ See Tr. 1, p.130; Tr. 2, p. 101.]
Vegetation on the site which indicates a wetlands environment includes: marsh hay, salt marsh cordgrass, high tide bush, salt marsh fleabone, black grass and sea myrtle. [Tr. 1, p. 131; Tr. 2, p. 110; Government Trial Exhibit 8.] These plants are commonly found in New Jersey salt marshes, [Tr. 2, p. 109], and are adapted to an area subject to tidal flow. [Tr. 1, pp. 146-147.] Specifically, salt marsh grass and salt grass, two plants which survive frequent flooding, are found immediately adjacent to the tidal ditches on the site. Up from the tidal ditches, but still within the federally designated wetlands area, high tide bush, groundsel tree and sea myrtle, vegetation adapted for life in saturated soil, can be found. [Tr. 2, p. 17.]
No significant areas within the wetlands designated area do not include the species described above [Tr. 1, p. 131]; and the federally designated wetlands area is dominated by these plants. [Tr. 1, p. 132; Tr. 3, pp. 162-163.] Furthermore, these species exist beyond even the federally designated wetlands line. [Tr. 1, p. 132.]
The salt marsh snail, a salt marsh invertebrate which lives only in wetlands, has been found on the site. [Tr. 2, p. 114.] Isopods, which are characteristic of salt marshes have also been found there. [Tr. 2, p. 114.] Fish were observed in the creek on the site [Tr. 2, p. 114]; snowy egrets were observed feeding on the fish [Tr. 1, p. 123].
Great Blue Heron and the Clapper Rail (which typically nest in salt marshes and are found only in wetlands) have been observed on the site. [Tr. 2, p. 114.]
The soil in the federally designated wetlands at the site is saturated throughout, in most cases directly to the surface. [Tr. 1, pp. 132-133; Tr. 2, p. 112.] It is wet, very dark and primarily sand, which indicates an anaerobic condition. [Tr. 2, p. 134.]
At the upper edges of the federally designated wetlands boundary, the soils are also saturated and there is a high water table. [Tr. 2, p. 113.]
During normal high tide conditions, surface water covers a majority of the site: although there are areas on the site above the high tide line which are never covered by water, over 50% of the site was covered during an inspection on November 4, 1983, even with the fill present. [Tr. 1, p. 145.] It can presently be determined by examining breaches in the fill on the site and adjacent communities of the same elevation [Tr. 1, p. 154] that, without fill, tidal waters would normally flow onto the site through the entire southernmost portion and the break in the railroad embankment. [Tr. 1, pp. 141, 150-151, 154; Tr. 2, p. 24.]
Finally, the Diamond Beach site was mapped as a wetlands area by the United States Fish and Wildlife Service on its National Wetlands Inventory between 1978 and 1980. On that map, the site was designated as a mixed emergent wetland with open water. [Tr. 2, pp. 119-121; Government Trial Exhibit QQ.]
There is inconclusive evidence that the site contains wetlands which are below the mean high tide line. Although Government expert Olson and defense expert Franklin both testified that some small portion of the site is below the mean high water line [Tr. 1, pp. 157-158; Tr. 3, p. 182], Government expert Tiner, whom the court found to be most knowledgeable in this area, refused to testify about that subject because he believed that the data necessary to make such a determination was not available. [Tr. 2, pp. 132-133.]
E. The Importance of the Wetlands and the Damage Done Thereto by Defendants
Tidal wetlands are used as nursing and spawning areas for a variety of forage fish and sport and commercially important fish species. [Tr. 2, p. 11; J.O. Aff., para. 12.]
When this site is open to tidal flow, the plant production is washed into the adjacent tidal waters where it becomes the primary food source for aquatic organisms. The organic detritus of the tidal marsh serves as the base for the estuarian web. [Tr. 2, p. 11; J.O. Aff., para. 10.]
Wetlands, including this site, also act as water quality purification areas. They improve water quality by trapping run-off from adjacent developed areas [Tr. 2, p. 11; J.O. Aff., para. 9], and they act as a buffer, shielding adjacent upland areas from storm actions. They then serve as a storage area for storm and flood waters. [Tr. 2, p. 11.]
Furthermore, wetlands, including this site, are important habitats for aquatic animals, as well as mammals and birds, including:
a. wintering, migratory and breeding waterfowl and other birds;
b. passerine bird species; and