govinfo:USCOURTS-flsd-2_21-cv-14205-4

UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
 
CASE NO. 21-14205-CIV-MARRA/MAYNARD 
 
UNITED STATES OF AMERICA, 
 
Plaintiff, 
 
vs. 
 
BENJAMIN K. SHARFI, in his personal and 
fiduciary capacity as trustee of the Benjamin 
Sharfi 2002 Trust, and NESHAFARM, INC., 
 
Defendants. 
____________________________________/ 
 
ORDER AFFIRMING REPORT AND RECOMMENDATION 
 This cause is before the Court upon Plaintiff’s Motion for Summary Judgment (DE 150); 
Defendants’ Cross Motion for Summary Judgment (DE 154); Defendants’ Motion to Exclude 
Testimony of Michael Wylie (DE 155) and Plaintiff’s Motion to Exclude Certain Opinions of 
Defendants’ Expert Michael Dennis (DE 161). 
 This matter was referred to the Honorable Shaniek Mills Maynard, United States 
Magistrate Judge, Southern District of Florida. A Report and Recommendation, dated September 
21, 2024, has been filed. (DE 184.) The Report recommends that Plaintiff’s Motion for Summary 
Judgment (DE 150) be denied, Defendants’ Cross Motion for Summary Judgment (DE 154) be 
granted, and the remaining motions be denied as moot. The Court has conducted an independent 
de novo review of the file, the objections (DE 186) and the response to the objections (DE 188).   
 Accordingly, it is hereby ORDERED AND ADJUDGED as follows: 
1) The Court agrees with the legal conclusions of the Magistrate Judge as set forth in 
her thorough and extensive Report and Recommendation (DE 184).  None of the 
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man-made ditches or channels at issue, namely the East-West Ditch, the North-
South Ditch or the 84th Avenue Ditch, are “waters of the United States” because 
they are not “relatively permanent water” as defined by the United States 
Supreme Court in Sackett v. Environmental Protection Agency, 598 U.S. 651, 
671-74 (2023) and Rapanos v. United States, 547 U.S. 715, 739 (2006).    
          More importantly, however, even assuming these man-made channels are 
“waters of the United States,” the wetlands on Defendants’ property are clearly 
not “as a practical matter indistinguishable from” these waters because they do 
not have “a continuous surface connection with that water, making it difficult to 
determine where the ‘water’ ends and the ‘wetland’ begins.”  Sackett, 598 U.S. at 
678-79; Rapanos, 547 U.S. at 742.  The Court also agrees with the Magistrate 
Judge’s conclusion that “continuous surface connection” means a surface water 
connection.  Otherwise the Supreme Court’s statement in Sackett that “temporary 
interruptions in surface connection may sometimes occur because of phenomena 
like low tides or dry spells;” and the statement in Rapanos that “[w]etlands are 
‘waters of the United States’ if they bear the ‘significant nexus’ of physical 
connection, which makes them as a practical matter indistinguishable from waters 
of the United States,” would have no practical meaning. See Sackett, 598 U.S. at 
678; Rapanos, 547 U.S. at 755 (emphasis in the original).   
          In this regard, the Court notes that none of the cases cited by the United 
States in support of the proposition that “continuous surface connection” does not 
have to be a surface water connection stand for that proposition.  In United States 
v. Andrews, 677 F.3d 74, 88 (D. Conn. 2023), the court stated that there was 
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undisputed evidence that “continuous surface flow paths link the wetland with the 
unnamed tributary.”  In the government’s citation to this case, it conveniently 
leaves out the word “continuous” which is critical to understanding the import of 
the court’s decision.  A “continuous surface flow path” can only mean a 
continuous surface “water” flow path, rather than a surface path through which 
water occasionally flows.   
          In United States v. Valentine, 2024 WL 4379735 *4 (E.D.N.C. September 
27, 2024), the court was presented with a motion for judgment on the pleadings 
where the government alleged that the wetland maintained a continuous surface 
connection with the Roanoke River and its tributaries, which allegation the court 
was required to accept as true.  Whether the continuous connection had to be a 
surface water connection was not an issue.  
          In White v. E.P.A., ___ F.3d ___, 2024 WL 3049581 *10 (E.D.N.C. June 
18, 2024), the court also never addressed the issue of whether continuous surface 
connection had to be a surface water connection. 
          By contrast, the court in United States v. Ace Black Ranches, LLP., Case 
No. 24-cv-00113-DCN, at 8, n.2 (D. Idaho August 29, 2024), expressly stated in 
granting a motion to dismiss the government’s complaint “The Government still 
needs to connect any wetlands it believes Ace Black Ranches’ has polluted with 
the River via a sufficient surface-water connection.” (emphasis added). 
          In view of all of the foregoing, the Report and Recommendation of the 
Magistrate Judge  is AFFIRMED AND ADOPTED. 
2) Plaintiff’s Motion for Summary Judgment (DE 150) is DENIED. 
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3) Defendants’ Cross Motion for Summary Judgment (DE 154) is GRANTED. 
4) The Court will separately enter judgment for Defendant. 
 
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, 
Florida, this 30th day of December, 2024. 
 
KENNETH A. MARRA 
United States District Judge 
 
       
 
 
 
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