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April 27, 1989

MALIBU BEACH, INC., et al., Defendants

The opinion of the court was delivered by: RODRIGUEZ

 This matter is before the court on an application by the United States for a preliminary injunction. The Government seeks to enjoin defendants from further engaging in fill activities at the Malibu Beach site, located in Atlantic Beach, New Jersey, and to obtain a mandatory injunction requiring defendant to remove fill material that presently exists at the site.

 The Government claims jurisdiction over the property under the Federal Water Pollution Control Act (hereinafter the "Clean Water Act" or "CWA"), 33 U.S.C. § 1251-1376. For jurisdiction to attach, the Government must prove that the fill activities impair the flow of "waters of the United States," as defined by 33 C.F.R. 328.3(a), or that defendants have filled an area designated as "adjacent wetlands," i.e. wetlands adjacent to waters of the United States, as defined by 33 C.F.R. 328.3(b).

 A hearing was held on December 9, December 14, and December 22, 1988, and the parties have submitted both pre-trial and post-trial briefs in support of their positions.


 The Clean Water Act (hereinafter "CWA") prohibits the discharge of pollutants into waters of the United States except when permitted in accordance with restrictions established under other sections of the Act. See 33 U.S.C. § 1311(a). Section 404 of the CWA regulates the discharge of fill material into "navigable waters" by requiring a discharger to obtain an appropriate permit from the Army Corps of Engineers before depositing dredged or fill material. 33 U.S.C. § 1344; United States v. Ciampitti, 583 F. Supp. 483, 491 (D.N.J. 1984).

 The CWA broadly defines "navigable waters" to include "all waters of the United States, including territorial seas." 33 U.S.C. § 1362(7). The regulations published by the Environmental Protection Agency (hereinafter "EPA") and the Army Corps or Engineers (hereinafter "the Corps") for implementing the CWA define "waters of the United States" to include:

All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide ;
* * * *
[and] wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a)(1)-(6) of this section.

 33 C.F.R. § 328.3(a)(1), (7) (1987) (emphasis added); see also 40 C.F.R. § 230.3(s)(1), (7) (1987).

 Regulation 328.4(b) states, in part, that the landward limits to CWA jurisdiction for tidal waters of the United States extend to the high tide line. 33 C.F.R. § 328.4(b)(1). The regulations define the high tide line as "the line of intersection of the land with the water's surface at the maximum height reached by a rising tide." 33 C.F.R. § 328.3(d). Section 328.3(d) further explains that in the absence of actual data, the high tide line may be established

by a line of oil or scum along shore objects, a more or less continuous deposit of fine shell or debris on the foreshore or berm, other physical markings or characteristics, vegetation lines, tidal gages, or other suitable means that delineate the general height reached by a rising tide. The line encompasses spring high tides and other high tides that occur with periodic frequency but does not include storm surges in which there is a departure from the normal or predicted reach of the tide due to the piling up of water against a coast by strong winds such as those accompanying a hurricane or other intense storm.

 33 C.F.R. § 328.3(d) (emphasis added).

 In addition, the regulations define "wetlands" as

 33 C.F.R. § 328.3(c).


 A. Waters Subject to the Ebb and Flow of the Tide

 The Malibu Beach property is located along Longport Boulevard, between Longport and Ocean City, New Jersey. It is bound to the east by the Great Egg Harbor Inlet, and to the west by Longport Boulevard. Malibu Beach consists of a beach area abutting the inlet, a central dune area, and a pool of water (hereinafter "the pool"), which is situated between the dunes and Longport Boulevard. The Government contends that the pool falls under the definition of "waters of the United States" as articulated in the Clean Water Act and its regulations, because before defendants conducted the alleged fill activities, the pool was subject to the influence of the tides from Great Egg Harbor Inlet. In the alternative, the Government argues that the fill areas contain wetlands adjacent to the inlet, as defined in the regulations, and are therefore within the jurisdiction of the CWA.

 At the hearing before this court, the Government presented evidence to establish that defendants deposited fill material in low areas of the dunes in order to stop the tidal flow between Great Egg Harbor Inlet and the pool. Those areas were designated as the "western breach area" and the "central breach area." The Government also presented evidence to establish that these areas, as well as three other areas of Malibu Beach, designated the "half moon," "road fill," and "eastern fill" areas, were wetlands within the meaning of the CWA.

 Allen Jackson, a biologist employed by the United States Fish & Wildlife Service, testified at the hearing that he had visited the Malibu Beach site on March 10, 1983. He testified that on that date he observed a wrack lines *fn1" on both the pool side and the inlet side of the western breach area. See Government exhibits 13-14. Jackson stated that the wrack line on the pool side of the dunes indicated that the pool was subject to tidal flow when the tide was at its highest point.

 Jackson testified that on October 2, 1984, he observed that tires, which have the effect of trapping sand, had been placed in the western breach area. Declaration of Jackson at 5, 9. He stated that on June 13, 1986, he again visited the property and noticed that, in addition to the tires, a considerable amount of soil and concrete rubble had been deposited in this area, creating a berm approximately 30 feet long and 10 feet wide, substantial enough to block the tidal flow from entering into the pool.

 Jackson returned to the site on August 6, 1986, and photographed the western breach area. Government exhibit 16. He testified that on that day he observed a wrack line at the base of the berm on the inlet side, indicating that the berm had effectively blocked water from passing into the pool.

 Jackson also testified that he went to the site on two occasions in 1987 and observed the condition of the berm. On June 5, 1987, he noticed that the berm had deteriorated since his June 13, 1986 inspection. On August 25, 1987, he noticed that the deposited tires were scattered throughout the pool, reflecting tidal influence on the pool itself. See Government exhibit 22.

 Claffey testified that he obtained an aerial photograph of the site taken on March 8, 1987 and conducted a stereoscopic analysis of that photograph. See Government exhibit 32. According to Claffey, the photographs indicate that the central breach areas did not contain fill material at that time, and that the sand in the central breach area was moist. Claffey indicated that the photographs were taken when the tide was 1.84 feet below mean high water. See Government exhibit 35. Although the photographs do not show a direct connection between the inlet and the pool, Claffey opined that the existence of moist sand in this low-lying area indicates that the central breaches were subject to tidal inundation, and that the waters of the inlet would eventually reach the breach area at high tide.

 Jackson also observed the central breach area on June 5, 1987, and testified that the area remained unfilled and contained some standing water. He concluded that the standing water was the result of the receding high tide. On August 20, 1987, Jackson observed that this area had since been filled. He also noticed a prominent wrack line located on the landward side of the fill material, indicating to him that the breach area where the fill had been placed was subject to the normal flow of the tide. See Government exhibit 28; see also Government exhibits 29-30. The Government supported Jackson's conclusion with evidence that no intense storm activity of sufficient intensity to cause the same effects had taken place on the New Jersey coast between June 1, 1987 and August 31, 1987. Declaration by Michael Caropolo at 3.

 Defendants proffered evidence to show that changes have occurred at the site since 1962. Dr. Norbert Psuty, a recognized geomorphologist, testified that the dunes were subject to migration into the pool, and explained how breaches may occur in the dunes. He indicated that storm waves, surges, and currents can break through the dune ridge, transporting sand from the inlet side of the dunes to the pool side. An accumulation of sand in the shape of a fan then results on the inland side of the dunes. See Government exhibits 3, 3A. This movement of sand yields what is referred to as a "washover fan," which, according to Psuty, is the eventual location of the migrating dune ridge.

 Psuty further stated that the migration of the dunes inland serves to enhance the strength of the dune structure. According to Psuty, the breaches that may occur due to storm activity, winds, or surges, resulting in the washover fans, will eventually heal as a result of natural processes. Psuty indicated that during this healing process the breaches close, and dune vegetation takes root, thus stabilizing the dunes. In Dr. Psuty's opinion, the central breaches depicted in Government exhibits 2-4 may have healed by natural processes after Claffey's observations in November, 1986.

 Psuty indicated that the mean high tide range at Malibu Beach is approximately 2.38 feet above mean sea level. He stated that spring high tides, the highest predictable tides, are 1.6 feet higher than the mean high tide range. He concluded that the highest predictable and measurable tides at Malibu Beach, therefore, would reach 3.98 feet above mean sea level.

 Psuty opined that the pool could not be subject to the predictable flow of the tides. He noted that the dune ridge at the site extends approximately six feet above mean sea level. Because the predictable level of the spring high tides (3.98 feet above mean sea level) does not rise above the six feet dune ridge, Psuty concluded that a measurable periodic tidal connection between the inlet and the pool could not exist.

 Defendants also rely on a letter dated January 21, 1985, from the Army Corps of Engineers to defendant Albert A. Ciardi. Defendants exhibit D-1. The letter indicates that it was the Corps' position in 1985 that "the high tide line was established as corresponding to the three-foot contour line that runs along the Oceanfront portion of the property . . . ." According to defendants, the letter indicates that as late as 1985 the Corps recognized that CWA jurisdiction extended no farther than ...

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