Title: The Legal Problems
CITATION THUMBNAILS PAGE IMAGE ZOOMABLE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/WL00003010/00001
 Material Information
Title: The Legal Problems
Physical Description: Book
Language: English
Publisher: Golden Gates Estates Study Committee
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Richard Hamann's Collection - The Legal Problems
General Note: Box 12, Folder 4 ( Golden Gate Estates Redevelopment Study - Phase I - 1975 ), Item 4
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003010
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text







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


M-21


~_I_~___ __~__il a____ __II __ ~I ___ i










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


M- 26


~-~-1~~- ---~-- --- -------;,~ -- --- ~_-~~~-------- .. ~-- ---~ -----. ;---ir;--- Ti-l"~-T-~mrr -;~~-rc---ri-^---r-xII~-




University of Florida Home Page
© 2004 - 2010 University of Florida George A. Smathers Libraries.
All rights reserved.

Acceptable Use, Copyright, and Disclaimer Statement
Last updated October 10, 2010 - - mvs