|
II. The Legal Problems
A)1 In General
Assuming the ecological soundness of the above analysis, the ques-
tion immediately arises as to its legal viability, since it would in-
volve returning a substantial portion of the Golden Gate states area
to a non-developable condition despite the fact that much of that non-
developable area has been transferred to numerous private owners whose
expectations may be frustrated by such a change in plans.
In addition to the fact that substantial areas would become non-
.developable under this approach, the expense of development in other
areas properly classed as developable would undoubtedly increase as a
result of restoration of the water table in such areas to levels much
closer to ground surface, in many cases levels which might make it im-
possible to obtain permits to install septic tanks unless substantial
filling of the lots was done by GAC or the owners of those lots. Those
changes, including both removal of substantial portions of land from
development and making development more difficult in other areas, raise
substantial legal questions as to whether their imposition would consti-
tute a taking of property of the owners for which compensation would be
required to avoid having such action constitute a violation of the due
process clauses of the Sta'te and Federal Constitutions. Moreover, if
compensation were to be paid, the additional question arises as to
whether such taking could be justified as constituting a proper public
purpose in order to meet the requirements for the taking to be legally
justified under eminentdomain procedure in Florida. F.S. Ch. 127.
M-3
_ _jl_ _~___1~~_C __ _~__ ~__ _CI1__________C~I________- -~--PI-~l~--l_~ II_---~11--
( I8) Impairment of Contract
It might be argued by GAC that governmental regulation forcing the
raising of the ground water to a level which might make it impossible
to obtain permits to install septic tanks would be invalid as an impair-
.;* ment of contract by the state, since the consent order issued by the
Federal Trade Commission and made a part of the final order of the U.S.
District Court for the Southern District of Florida in Weis v. GAC Corp.
No. 73-155 (filed September 30, 1974) imposes on GAC a requirement under
its contracts with its purchasers to provide each Tot ownersewage faci-
Slities in the form of either centrally operated facilities or operable
septic tanks.
It seems that the impairment of contract argument has little merit
in Florida. In determining whether legislation is invalid as an impair-
S ment of contract, the Florida Supreme Court has looked not to whether
the legislation affects contracts incidentally, directly, or indirectly,
but to whether it is addressed to a legitimate end and the measures
taken are reasonable and appropriate to that end. See, Mahood v. Bessemer
SProperties, Inc., 154 Fla. 710, 18 So. 2d 775 (1944). It appears that
in raising the ground water level, the regulation would have a legiti-
mate end as well as calling for reasonable measures. appropriate to
accomplish that end.
Moreover, the necessity of adding large amounts of additional fill
to provide for operable septic tank systems may be obviated by one or
'.-
more of the newly devised methods of disposing of the effluent from
such tanks, including-disposal in an elevated,mound type drain field
Consisting of a sand filter constructed on top of the ground and covered
M-4
__I_ ~__~____~_ ___~LI_______ _1
with about six inches of topsoil. If necessary the effluent from the
septic tank can be pumped into the field by a small float-operated pump.
This type of drain field is described in Manual of Septic-Tank Practice,
Public Health Service Publication No. 526, pp. 62-65. (Revision of 1967).
It is understood that such a system is successfully in use by Dr. J. H.
Sullivan, Vice President of Water and Air Research of Gainesville, Florida,
and that other such systems are in successful operation in this area.
An alternative method which obviates the use of the drain field al-
together but still permits the use of septic tanks involves disposal of
the effluent from the tank into force-fed drain lines which carry it to
a centrally located secondary treatment plant. (See, Pressure Sewer Sys-
tems Gain New Popularity, Feburary 1975 issue, Water and Sewage Works
84-87.. The article describes such a system in successful operation in
Port Charlotte, Florida. Front-end installation cost is said to be
approximately 75 per cent less than that of a gravity sewer system.
Either system may result in considerable savings over the deep
filling that might otherwise be necessary to make a septic tank system work-
able. Their availability would considerably weaken any "taking" or
"impairment of contract" arguments with respect to such legitimate regu-
lation. Additionally, even if GAC were prohibited from installing septic
tanks, the option to provide centrally operated facilities still lies
open to it, insuring that performance of the agreement by GAC is not
foreclosed.
(C) Possible Use of Eminent Domain
Should Collier County decide to proceed by way of eminent domain
proceedings to acquire title to all or a part of the land in order to
M-5
-- -- 31~
!1
return it to its natural state, it would appear that a court would be
amply justified in finding a sufficient public purpose to support such
action, particularly in light of the public policy statements in the
Florida Water Resources Act of 1972 (F.S. Ch. 373) and the Florida
Environmental Land and Water Management Act of 1972 (F.S. Ch. 380).
The Florida Environmental Land and Water Management Act of 1972
(F.S. Ch. 380) states:
I F.S. 380.021 Purpose.--It is the legislative in-
tent that, in order to protect the natural resources
Sand environment of this state as provided in 7,
Art. II of the state constitution, insure a water
management system that will reverse the deterioration
of water quality and provide optimum utilization of
our limited water resources, facilitate orderly and
well planned development, and protect the health,
welfare, safety, and.quality of life of the resi-
dents of this state, it is necessary adequately to
plan for and guide growth and development within
This state. In order to accomplish these purposes,
it is necessary that the state establish land and
water management policies to guide and co-ordinate
local decisions relating to growth and development;
that such state land and water management policies
should, to the maximum possible extent, be imple-
Smented by local governments through existing pro-
cesses for the guidance of growth and development;
and that all the existing rights of private property
be preserved in accord with the constitutions of
this state and of the United States.
The Florida Water Resources Act of 1972 (F.S. Ch. 373) states in its
declaration of policy:
F.S. 373.016 Declaration of policy.-
(2) It is further declared to be the policy of the
legislature:
(a) To provide for the management of water and
related land resources;
(b) To promote the conservation, development,
and proper utilization of surface and ground
water;
(c) To develop and regulate dams, impoundments,
reservoirs, and other works and to provide
M-6
L:.
water storage for beneficial purposes;
(d) To prevent damage from floods, soil ero-
sion, and excessive drainage;
(e) To preserve natural resources, fish and
wildlife;
(f) To promote recreational development, pro-
tect public lands, and assist in maintaining
the navigability of rivers and harbors; and
(g) Otherwise to promote the health, safety,
and general welfare of the people of this state.
In addition to these legislative declarations, the demonstrated need
for protection of fish and wildlife of the Fahka Union and Naples Bay
areas would provide additional evidence of public purpose. It is assumed
that the evidence offered at the Golden Gate Estates Study Committee
Meeting held at the Collier County Courthouse on May 2, 1975, by Mr.
Bernard Yokel concerning the $2 million per year value of the fishing
i industry in the Ten Thousand Islands area as well as his evidence of
the extent to which that industry is being endangered by the massive
shock-type discharges of fresh water into Fahka Union Bay can be docu-
mented in a fashion which would make it admissible in a court of law.
Such testimony would be helpful in the event that a decision was made to
employ eminent domain proceedings to acquire all or a part of the en-
dangered area, and the public purpose behind such a condemnation pro-
ceeding were challenged. The need to prevent salt water intrusion and
to control or eliminate the fire hazard which has resulted from lowering
of the ground water levels in the area provide additional public pur-
poses to be served by such regulation. Even without this factual support,
however, the legislative declarations of policy found in the Florida Water
Resources Act of 1972 and the Florida Environmental Land and Water Manage-
ment Act of 1972 would seem to provide adequate proof of public purpose
M-7
I --
! to justify such proceedings.
S .D Restoration of Water Levels--the Taking Issue
The question of restoring the ground water levels of the develop-
able parts of Golden Gates Estates to a height closer to their original
natural condition by governmental regulation rather than eminent domain
raises different legal problems, including the "taking'issue mentioned
earlier.
The nebulous line distinguishing a valid regulation of land pursuant
to the police power from an unconstitutional taking of property without
.due process of law has been defined very poorly by the courts. The tra-
ditional method of testing the validity of regulatory legislation enacted
in the public interest, as applied to wetlands and flood plain regulation,
is a balancing of the restrictions placed on the land against the public
interest to be served or the pdential harm to the community from over-
development of the flood plain or wetlands. See, Goldblatt v. Hempstead,
369 U.S. 590, 82 S. Ct. 987 (1961); Turnpike Realty v. Town of Dedham,
284 N.E.2d 891(Mass. 1972).
The ultimate question seems to be whether the regulation has gone
S sufficiently far to constitute a taking. Penn. Coal v. Mahon, 260 U.S.
410 (1922). Complete deprivation through regulation of all "reasonable"
or "beneficial" use of the land to the landowner has generally been held
to be invalid as a taking. Dooly v. Fairfield, 197 A.2d 770 (Conn. 1964);
also. Turnpike Realty v. Town of Dedham, 284 N.E.2d 891 (Mass. 1972).
Needless to say, courts have differed in defining what is a "reasonable"
or a "beneficial" use of the land. In Turnpike Realty v. Town of Dedham,
the Massachus'etts court held that a flood plain ordinance specifically
M-8
permitting only woodland, horticultural or recreational use of land or
water in the flood plain did not deprive the landowner of all beneficial
use of his land. However, in Dooly v. Fairfield, the Connecticut court
found a similar ordinance invalid as a practical confiscation when ap-
plied to a particular piece of land.
In the 1972 case of Just v. Marinette County, 201 N.W.2d 761 (Wis.
1972), the Wisconsin Supreme Court, in balancing the public versus the
private interest regarding the development of wetlands, clearly demon-
strates the modern trend toward recognizing the valid interest of the
.public in regulating development of privately held land through the
police power. The court held that:
"An owner of land has no absolute and unlimited .
right to change the essential natural character of
his land so as to use it for a purpose for which
it was unsuited in its natural state and which in-
jures the rights of others. The exercise of the
police power in zoning must be reasonable and we
think it is not unreasonable exercise of that power
to prevent harm to public rights by limiting the
use of private property to its natural uses.
". .destroying the natural character of a swamp
or a wetland so as to make that location available
for human habitation is [not] a reasonable use of
that land when the new use, although of a more
economical elue to the owner, causes a harm to
the general public." 201 N.W.2d at 768.
The Just case would strongly support regulation to maintain the areas
here involved in their natural state. Little if any treatment has been
given by the Florida courts specifically to the question of taking with
regard to wetlands and flood plain zoning, and it is uncertain on which
side of the hazy line the Florida courts would come to rest in any given
situation. See, Staff Report No. 1 to the Governor's Property Rights
M-9
,-.
I Study Commission, January 15, 1975. It is interesting to note, however,
that Just v. Marinette County is apprpvingly cited in the Florida case
of Hillsborough County Environmental Protection Commission v. Frandorson
Properties, 283 So. 2d 65 (2d D.C.A. Fla. 1973). Moreover, the public
policy statements of the Florida Water Resources Act of 1972 and the
Florida Environmental Land and Water Management Act of 1972, and the
additional environmental and conservation concerns discussed above in
/
connection with the possible use of eminent domain proceedings would seem
to provide evidence of substantial public interest sufficient to justify
.broad regulation of the land in question without the necessity of com-
pensation.
The modern trend of the law across the country favors an expanded
degree of regulation when reasonably necessary in the public interest,
in which case such regulation is classified as a valid exercise of the
police power rather than a taking. See, Zabel v. Tabb, 430 F.2d 199
(5th C.C.A. 1970); Candlestick Properties, Inc. v. San Francisco Bay,
11 Cal. App. 557, 89 Cal. Rptr. 897 (1970); Just v. Marinette County,
201 N.W.2d 761 (Wisc. 1973); In Re Spring Valley Development, 300 A.2d
736 (Me. 1973).
LE)_ Le gal Authority for Regulation
In the light of the above discussion, it is appropriate at this
point to examine the various County and State Ordinances and Statutes
S under which such regulation might be validated.
(i" State Level Regulation
The Florida Water Resources Act of 1972 (Ch. 373, Florida Statutes)
authorizes both the State and the Water Management Districts created
M-10
under the authority of the Act to undertake regulation of ground water
levels. F.S. 8373.026(2). The substantial lowering of ground water
levels in the Gold egat-Etates area, accompanied as it is by massive
discharges of fresh water into Fahka Union Bay and the Bay of Naples,
S /' constitutes a consumptive use of water for which permitsmaybe required
under Section 373.219 of the Act. In addition, the Act authorizes
regulation of not only the construction but also the operation and main-
S tenance of canals. 373.409, et seq.
The exercise of the above-mentioned powers would normally be dele-
.gated to the water management districts created by the Act, and indeed
such power has been delegated to the Cent /aluQ ther lor F
Control District which was scheduled under the Act to take jurisdiction
of the Collier County area on July 1, 1975. F.S. 1373.069(3). Presently,
G Collier County is located in the Ridge and Lower Gulf Coast Water Manage-
ment District, a district which has never had a governing board appointed
by the Governor of Florida, probably because it had been scheduled to
go out of existence on July 1, 1975. The 1975 Florida Legislature has
just postponed the transfer date.to January 1, 1977. Absent a district
to exercise the regulatory authority, or indeed even if such a district
were in operation, the Water Resources Act authorizes the Department of
Environmental Regulation as successor to the powers of the Department of
Natural Resources to exercise similar regulatory power.
S F.S. 373.026(7) states:
"The department may exercise any power herein au-
thorized to be exercised by the water management
district."
I M-11
F.S. 373.042 adds the following authority:
"[Tlhe department or the governing board shall es-
tablish the following:
(1) minimum flow for all surface water courses in
the area..
(2) Minimum water level. .of ground water in an
aquifer and the level of surface water at which
further withdrawals would be significantly harmful
to the water resources of the'area."
It .is, therefore, possible for Cobiaii-County to approach the Department
of Environmental Regulation with a request to undertake the necessary
regulation in the interest of protecting the water resources of the
County and preventing further harm to the fish and wildlife of the areas
where the water is being discharged.
An additional basis for intervention by the Department of Environ-
mental Regulation is to prevent the pollution of the Bayofjlap-s and
Fahka Union Bay by discharges from the GAC canals. The Department of
Pollution Control, transferred to the Department of Environmental Regu-
lation by the Florida Environmental Reorganization Act of 1975, promul-
S/ gated revised rules on March 25, 1975, claiming jurisdiction in connection
with dredge and fill activities over "waters of the state", a broad term
similar to the term "waters of the United States", which will be dis-
cussed in part II (iii) infra dealing with federal jurisdiction over
water pollution under the 1972 amendments to the Federal Water Pollution
Contid Act. Suffice it to say at this point that Florida's Department
of Pollution Control is obviously claiming broad jurisdiction over the
"waters of the state" similar to the jurisdiction claimed by the EPA
under the Federal Water Pollution Control Act.. In Section 17-4.28(2)(c)
of the rules of the state agency, jurisdiction is asserted over "bays,
M- 12
W, -
bayous, sounds, estuaries and tributaries thereto" as part of the waters s
of the state". The GAC canals would appear to be tributaries to the Bay
i of Naples and Fahka Union Bay, and thus subject to the jurisdiction of
the Department of Environmental Regulation as successor to the authority
* of DPC. Under Rule 17-4.28(3), applicants for permits from DPC must
provide the Department "reasonable assurance" that both the short and
/ long term effects of the proposed actMty will not result in a violation
of water quality standards.
Even if no additional permit should be required from DER under
.these rules to maintain the present GAC canal system, a proposition which
may be subject to debate, any change in the canals will require such a
* permit. Such changes will undoubtedly be necessary to meet the require-
Sments for obtaining Federal Flood Insurance in the Golden Gate Estates
area, as pointed out in Part II (i i i)(b) infra. In this connection, dis-
charges from the GAC canals into the Bay of Naples and Fahka Union Bay,
as the area changes from its present status of less than 1% developed to
a highly developed urban area, present substantial long term potentiali-
ties for pollution. Heavy applications of fertilizer on myriad lawns
on lots draining into the canals, to say nothing of leakage from septic
tank drain fields and runoff of pollutants From roads and other paved
areas, can be expected as the area becomes urbanized. DER in the exer-
cise of its pollution control function will then have a substantial
interest in regulating discharges from the GAC canals to prevent degra-
S dation of the water quality of both the Bay of Naples and Fahka Union
S Bay, as well as the Rookery Bay area which receives overflow discharges
via Henderson Creek.
M-13
Il) Regulation by Collier County
-I, - - -
I1: ja .. County Water Management Dist ricts
: Among the regulatory tools available to Collier County to assist
In its efforts to solve the Golden Gate Estates problem is the Collier
County Water District Management Act of 1961, Florida Sp. Acts, Ch.
61-2037, l. A number of County Water Management Districts containing
parts of the Golden Gate Estates area have been created under this act,
including Districts One, Six, and Seven.
These districts have authority to acquire, construct, reconstruct
.or improve water conservation facilities, including the acquisition of
any water conservation facilities heretofore constructed or partially
constructed. They may regulate the supply of water within the district,
and do all things necessary to insure an adequate supply of water for
human consumption, presumably including protection of the Naples well
field area against the threat of salt water intrusion.
The Act also gives the districts eminent domain power and the power
to levy and assess ad valorem taxes not to exceed five mills per year on
all taxable property within the districts. It also provides for the
levying of special assessments for the construction of improvements,
and for a special maintenance tax in addition to the ad valorem taxes
mentioned above to pay for'the maintenance and operation of water manage-
ment facilities of the districts.
.b County Water Management Ordinance of 1974
Another possibility for regulation exists through the 1974 Collier
County Water Management Ordinance, Collier County Ord. No. 74-50, filed
January 6, 1975, with the Secretary of State. In view of delay in
M- 14
--.
^. assumption of jurisdiction over the waters of Collier County by the
SCentral and Southern Florida Flood Control District, Collier County, as
authorized by F.S. 9125.01(1)(j), (k) and contemplated by the Florida
Water Resources Act of 1972, F.S. 5373.02 3(2), enacted a county-wide
Water management ordinance patterned after the 1972 Water Resources Act
and the Regulations of the Central and Southern Florida Flood Control
District adopted to implement that law. Section 2.01 of the ordinance
gives the County the power to require permits to use, divert or with-
draw any water (other than that required by the landowner for his
Sreasonable-beneficial use) or to construct, operate or maintain drainage
canals in Collier County. Sec. 2.09 of the Ordinance allows the County
V to declare a water shortage, giving the County additional powers, and
3 2.11 provides special emergency powers in addition to the use of 62.01.
With all of the powers given to the County Water Management Dis-
tricts, in addition to the water management powers given to the Board
of County Commissioners by Ordinance No. 74-50, the County would appear
to have more than adequate authority to take such steps as are necessary
to regulte water levels in the Golden Gate Estates area in the public
interest.
.c. _Regulation Through Zoning
Additional means of regulating land use in the area include pos-
sibilities of either State or County regulation through the zoning pro-
S cess. State regulation of the area as a Development of Regional Impact,
I while otherwise appropriate, would seem to be precluded in the instant
case since the development was started prior to the enactment of the
1973 Environmental Land and Water Management Act (F.S. Ch. 380) and the
M- 15
grandfather clause of that act would seem to exempt the Golden Gate
area
Estaels/from regulation under it. F.S. S380.05(15), 380.06(12). How-
ever, there are a number of county zoning regulations which may well
affect the uses to which the Golden Gates Estates property can be put.
Such zoning regulations can be validly enacted without constituting a
taking of the property to be regulated. Euclid v. Amber Realty, 272
Us?. 365, 47 s.Ct. 114 (1926).
Section nine of the Collier County Zoning Ordinance, Ordinance
74-42, providing special regulations for "Special Treatment (ST) Dis-
.tricts" in areas of environmental sensitivity is one example of the type
of land use regulation referred to above. A number of ST areas have
been designated within the Golden Gate Estates complex. The ordinance
requires that a permit be obtained from the County before any land in an
ST area is cleared or in any way developed. Such permits may be denied
"if the ecology of the area involved would be severely or substantially
damaged thereby". Another ordinance, No. 74-36, requiring environmental
impact statements for development of ten or more acres of land in areas
: of environmental sensitivity, provides assistance to the county in deter-
Smining whether development permits should be issued.
Section nine of County Zoning Ordinance 74-42 also provides a means
by which the owner of land in an ST area may transfer all or some of the
residential density of his ST land to another property rather than
develop the ST lands in conformity with the special zoning regulations.
Another County zoning ordinance affecting potential development in
a part of the Golden Gate Estates area is Ordinance No. 74-34 creating
an "Agricultural Estates District" within the Coastal Area Planning
M- 16
District of Collier County. Within this district the minimum lot area
was set at two and one-quarter acres, or double the size of most GAC
lots. At the Golden Gate Estates Study Committee Meeting on May 2, 1975,
the Chairman advised that the grandfather clause in this ordinance would
be broadened on May 6, 1975, to include lots under contract of purchase
from GAC in addition to lots already conveyed. Such a change, if made,
drew most of the teeth of the ordinance. However, minimum lot area
classifications of this sort, if necessary to protect the public health
in relation to drainage problems and proper operation of septic tanks,
.would seem to be fully justified.
Summarizing the possibilities for state, regional, or county regu-
lation of the canals and water levels in the Golden Gate Estates area,
there appear to be three possible levels of approach to restoration of
water levels in Collier County in the public interest: (1) regulation
of those levels by the Department of Environmental Regulation, as suc-
cessor to the powers of the Departmentof Natural Resources, exercising
its powers under Chapter 373 or as successor to the Department of Pol-
lution Control under Chapter 403 Florida Statutes; (2) regulation by the
Florida
Central and Southern/Flood Control District if and when it takes juris-
Sdiction of the waters of Collier County, or the Ridge and Lower Gulf
Coast Water Management District, if it is activated; and (3) regulation
by the County itself under the Collier County Water District managementt
Act of 1961, its Water Management Ordinance of 1974, or under its zoning
Powers. While a question of estoppel may be argued against the exercise
of County regulatory authority to restore higher ground water levels be-
cause the County has previously granted permission to GAC to construct
M-17
the canals, such estoppel, if any, would not appear to run against either
the Central and Southern Florida Flood Control District when it takes
jurisdiction or the Department of Environmental Regulation.
liiil _Federal Regulation
(a) Pollution Control Authority
There is yet another level of governmental authority which may
exercise jurisdiction to protect the land and water resources of Collier
County. That authority is the United States government. While the
I
United States does not regulate consumptive use of water (except in some
cases in the federal domain), it does exercise broad authority in the
water pollution contid area. This authority, as formerly exercised
by the Corps of Engineers under the 1899 Refuse Act, was limited to
pollution of navigable waters.. But that jurisdiction, now shared by
the Corps and the Environmental Protection Agency, has been greatly
extended by the Federal Water Pollution Control Act Amendments of 1972,
These Amendments extend pollution jurisdiction
to all "waters of the United States."
Corps of Engineers has argued that this
Congress of the United States is merely
diction based on navigation, and should
flow of the tides, the Federal District
in the case of Natural Resources Defens
life Federation v. Callaway, (U.S. Dist
(33 U.S.C. 1362(7)). While the
grant of authority by the
a restatement of prior juris-
not extend beyond the ebb and
Court for the District of Columbia
e Council, Inc. and National Wild-
. Ct., D.C., C.A. No. 74-1242,
opinion filed Mar. 27,
to extend jurisdiction
1975) recently interpreted the 1972 Amendments
far beyond tidal effects, and the Corps has been
ordered to promulgate new regulations, re-defining its area of juris-
diction. If the District Court opinion is
M-18
33 U.S.C. 125 et seq.
valid, the jurisdiction of both the Corps and the EPA with respect to
^ water pollution control covers an area far beyond the ebb and flow of
the tides and probably includes the.entire area of the GAC canals.
I Previous discussion indicates both the Corps of Engineers and the
EPA probably have jurisdiction over the GAC canals. It may be helpful
at this point to indicate how that jurisdiction is divided. Under the
'4
Federal Water Pollution C9ntrol Act Amendments of 1972, the water pol-4
lution control jurisdiction of the Corps is now limited to regulation
of the disposal of dredged or fill material which is placed in the wars
.of the United States or which is placed on land adjacent to the waters
of the United States from which it may run back into such waters. The
EPA, on the other hand, has jurisdiction over all point source dischar-
ges of pollution into the waters of the United States.
| Thus, it would appear that the Corps of Engineers under its broadened
jurisdiction over waters of the United States, has the right and duty
, .
to regulate dredge and fill operations of GAC including spoil deposits
along the banks of its canals to the extent these deposits may find their
way back into the canals and thus cause pollution of the waters of the
United States. Since the Corps in the 1960s granted GAC permits to con-
nect these canals with the navigable waters of the United States, GAC
'" may argue that the issuance of their permits estops the Corps from fur-
ther regulation of the canals themselves. This argument will be addressed
later.
Turning first to EPA jurisdiction, however, such'jurisdiction over
point source discharges into the waters of 'the United States was con-
ferred by the 1972 Amendments to the Federal Water Pollution Control Act.
M-19
The GAC canal system clearly involves such point source discharges
where the canals discharge into Fahka Union Bay and Naples Bay, both of
which are obviously waters of the United States under any definition of
such waters. Permits from the Corps of Engineers to connect such canals
with the navigable waters of the United States, having been given under
section 10 of the Rivers and Harbors Act, 33 U.S.C. 403, before the 1972
Amendments to the Federal Water Pollution Control Act conferred pollu-
tion control jurisdiction on the EPA, and making no reference to pollu-
tion, should in no way estop the EPA to exercise regulatory jurisdic-
tion If needed to prevent pollution of Fahka Union Bay and Naples Bay.
The question then arises whether the discharges fromthe GAC canals
into these bays constitute pollution. It would seem that these dischar-
ges do constitute pollution inasmuch as they drastically affect the
ecology of those bays as indicated by Mr. Yokel's sltement at the Naples
meeting of the Golden Gate Estates Study Committee on May 2, and the
Black, Crow and Eidsness Study of the GAC Canal Network dated October
1974. The case of U.S. v. Standard Oil Co., 384 U.S. 224, 86 S.Ct. 1427
(1966), held that anything which adversely affects the receiving waters
can constitute pollution. Taken literally, this means that discharge
of even chemically pure water can constitute pollution if it has an ad-
verse effect on the receiving waters. Following this line of reasoning,
thermal pollution by the discharge of heated water which was otherwise
pure into Card Sound and Biscayne Bay has been treated by a federal dis-
trict court for the Southern District of Florida as pollution. U.S. v.
Florida Power & Light-Co., 311 F. Supp. 1391 (D.C. S.D. Fla. 1970). The
Corps of Engineers .has since adopted this interpretation by regulation.
M- 20
33 C.F.R. 9209.131(d)(l) (1972). On the same basis, shot-type dischar-
ges of large quantities of fresh water carrying sediments of many dif-
ferent kinds into the saline waters of Naples Bay and Fahka Union Bay
with their documented adverse effects on the fish life of those bays
would clearly constitute water pollution subject to the jurisdiction of
the federal government.
: An additional possible new source of federal jurisdiction in the
Golden Gate Estates area is the Safe Drinking Water Act of 1974, 42
U.S.C. 300 f-j, also administered by the EPA. The act provides for pro-
-tection of underground sources of drinking water from contamination.
The drastic lowering of the fresh water table in the Golden Gate Estates
area from which the City of Naples is planning to obtain a substantial
portion of its drinking water will make wells in that area much more
easily subject to contamination by salt water intrusion. This contami-
nation could conceivably trigger EPA jurisdiction under the regulations
now being written.to implement the act. Again Corps of Engineers canal
discharge permits related only to navigation should have no estoppel ef-
fect with respect to EPA enforcement of the Safe Drinking Water Act.
While further hydrologic studies may be needed to document the relation-
ship between the 'lowering of the fresh water table in the well field ares
and potential salt water intrusion, this new avenue of federal juris-
diction may well be worth exploring.
Returning to the problem of possible estoppel of the Corps of En-
gineers to exercise its pollution control jurisdiction as a result of
its issuance of discharge permits for the Golden Gate Canal and Fahka
Union canal in the 1960s, the Corps issued such a permit on 10 January
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1963 to dredge an outfall canal to connect the Golden Gate canal with
the Gordon River emptying into Naples Bay. The Corps issued a similar
permit on 14 December 1966 to dredge an entrance channel connecting the
Fahka Union canal with the mouth of the Fahka Union River and Fahka
Union Bay. This permit was modified on 6 September 1967 and again on 22
January 1975 to provide for the installation of additional channel mar-
kers in the Bay and the mouth of the river in aid of navigation in
Fahka Union Bay channel.
The abovementioned permits were issued under 10 of the Rivers and
SHarbors Act of 1899, 33 U.S.C. 403. The section deals with "construc-
tion, repair, and preservation of certain public works on rivers and
harbors". It in no way deals with pollution. Section 13 of the Rivers
and Harbors Act of 1899, 33.U.S.C. 407 is the section which deals with
regulation of pollution through the discharge of "refuse". A permit to
dredge and fill under 10 of the Act does not authorize a discharge of
j refuse, which must be authorized under 13 of the Act. At the time of
Sthe issuance of the GAC permits in question, no permit system was in
operation to issue permits for the discharge of refuse under 13 of the
Act. Therefore it cannot be argued that the permits issued to GAC in
1963 and 1966 under 10 to dredge and fill in any way authorized a dis-
charge of refuse under 913.
It follows that the federal government has jurisdiction, acting
through the Corps of Engineers or the EPA, to exercise considerable
S additional regulatory authority over the GAC canal system. This author-
Sity may be exercised under the 1972 amendments to the Federal Water
Pollution Control Act, and quite possibly under the Safe Drinking Water
M- 22
: Act of 1974 as well. The permits issued to GAC by the Corps in 1963
and 1966, having been issued solely with reference to section 10 of the
Rivers and Harbors Act, and relating only to navigation, should in no
^ way estop action by the federal agencies under the abovementioned acts.
(.b) Effect of Federal Flood Insurance Legislation
As soon as the necessary flood plain maps have been made available
by the designated agencies of the United States government, Collier
County will be required to enact a flood plain zoning ordinance in com-
pliance with the National Flood Insurance Act of 1968 as amended (42
.U.S.C. 4001 et seq.) and the regulations promulgated thereunder by the
Federal Insurance Administration of the Department of Housing and Urban
Development.
The act and regulations require the county to control future develop-
ment in areas subject to the 100-year flood if any federal instrumentality
Is to participate in the financing of further development in the county.
Federal instrumentality-is broadly defined in the act and would cover
any institution associated or connected with the Federal Reserve System,
5. the Federal Deposit Insurance Corporation, the Comptroller of the Cur-
rency, the Federal Home Loan Bank Board, the Federal Savings and Loan
Insurance Corporation, and the National Credit Union Administration.
A future ordinance enacted to comply with the federal program will
l undoubtedly have the effect of drastically limiting construction in the
Golden Gate Estates area since much of it is subject to flooding accord-
ing to the Black, Crow and Eidsness report.
6;-
E M-23
L
__q _~1~1
I
c Possibility of Citizens' Suits in the Federal Courts
Sn alternative to governmental action by the federal water pollu-
tion control agencies is a citizens' suit brought by the Governor of
the State, Collier County, or by any other affected citizen or group
of citizens pursuant to the procedures set forth in section 505 of the
1972 Amendments to the Federal Water Pollution Control Act, 33 U.S.C.
11365 (1974), to enforce the prohibitions of the Act against the unau-
thorized discharge of pollution into Fahka Union and Naples Bays, which
are indisputably waters of the United States under the Act. If the
federal agencies should be reluctant to take direct action, such a suit
might provide a very fruitful remedy.
Siv) Common Law Nuisance Actions
In addition to the possibility of a citizens' suit under the FWPCA,
Collier County or a citizens' group may consider instituting a civil
action based upon common law nuisance principles to abate the nuisance
. created by the GAC canals. The county, being adversely affected by the
drainage problems and pdlution created by the canals would seemingly
have standing to bring such a suit under the Florida case of U.S. Steel
Corp. v. Save Sand Key, 303 So. 2d 9 (Fla. 1974). As in the case of
the citizens' suit under the Federal Water Pollution Control Act referred
to above, affected citizens should also have standing to maintain such a
suit.
Moreover, the common law nuisance approach, if brought by a citizen
group on the theory of private nuisance, can provide the additional ad-
vantage of sidestepping the defense of governmental authorization of the
activity complained of. For example, in the case of Uric v. Franconia
M- 24
Paper Corp. 107 N.H. 131, 218 A.2d 360 (1966), the Supreme Court of
New Hampshire held that a statute allowing a polluter en years to meet
a statutory stream pollution standard did not bar equitable relief on the
theory of private nuisance. The court further stated that legislation
permitting the continuance of a private nuisance would be an attempt to
sanction an unconstitutional taking of private property (the protectable
interest of the complainants in the purity of their river) for a non-
public purpose, and that an order requiring immediate cessation of all
pollution might be entered if no other means of abating the private
nuisance was available. The case seems soundly decided since legisla-
tively or administratively promulgated pollution standards set only
minimum requirements and when more is required to meet the common-law
standard, failure to meet that standard should result in liability. See,
Maloney, Judicial Protection of the Environment: A New Role for Common
Law Remedies, 25 Vanderbilt L. Rev. 145, 156 (1972).
.F _. Possibilities for Workin Out a _Settlement
Since the Black, Crow and Eidsness reports indicate that most of
the Golden Gate Estates area will be inundated by the 10-year average
flood and most certainly inundated by the 50-year flood, not to speak
of the critical 100-year flood which must be met under the Federal Flood
Insurance Act, the resultant inability of many landowners to finance
construction of homes on lands in the Golden Gate Estates area might
well lead to consideration of ways in which cluster housing, high-rise
condominiums, etc., might be constructed on the higher lands in the
area. The feasibility of working out such arrangements among landowners
M-25
_~I_
Aight be explored with GAC, and if mutually agreeable, the County might
consider authorization of transfer of development rights to consolidate
building into areas appropriate for development without detriment to
the public.
It is noted that SAC is required by the Consent Order issued by the
Federal Trade Commission, and made a part of the final order of the U.S.
District Court for the Southern District of Florida in the case of Weis
v. GAC Corp. (No. 73-155 filed September 30, 1974) to provide potable
water and sewerage facilities for each of the lot owners in the form of
Either centrally operated facilities or wells and operable septic tanks.
The infeasibility of living up to this requirement in the wetlands areas
of Golden Gate Estates might aid in convincing GAC of the desirability
of working toward such cluster type developments in the properly develop-
able areas of the project through some sort of transfer of development
rights from other areas to higher parts of the project. Absent such a
solution, GAC may find it necessary to offer lowland property owners an
opportunity to trade undevelopable property for lots in other GAC proj-
ects which meet FTC and flood insurance criteria for sound development.
III. Conclusion
In conclusion, it appears that there is sufficient legal authority
available either at the County, Water Management District, State or Fede-
ral levels tor:ake it possible to stabilize water run-off in the Golden
Gate Estates area and to control, reduce or-hopefully eliminate the
substantial waste of fresh water resources of Collier County, while at
the same time reducing or eliminating the effects of salt water intrusion
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