Full opinion text
DECISION AND ORDER TORRUELLA, District Judge. In substance, these suits concern the military use by the United States Navy of land which it owns in the Island of Vieques, a civilian municipality of the Commonwealth of Puerto Rico. They bring into focus the delicate and complex constitutional interplay that exists between our three branches of Government, as well as between the Federal and local establishments and its citizens. I. Procedural Preface The parties to these actions are as varied and as multifarious as the issues which they raise. In Civil Number 78-323 the Plaintiffs are Carlos Romero Barceló, who is the Governor of the Commonwealth of Puerto Rico, Radamés Tirado Guevara, the Mayor of Vieques, and the Environmental Quality Board, an administrative agency of the Commonwealth charged by law with protection of the environment in Puerto Rico. The Defendants in that suit are Harold Brown, Secretary of Defense of the United States, W. Graham Claytor, Jr., the Secretary of the Navy, James L. Holloway, Chief of Naval Operations, I. C. Kidd, Jr., Commander in Chief of the Atlantic Fleet, and Louis H. Wilson, Commandant of the Marine Corps. After the commencement of this suit on March 1, 1978, additional Plaintiffs sought and received permission to intervene. They were Carlos A. Zenón, Mario Félix, Mariano Rivera Guishard, Alicio Ayala Soto, Francisco Medina Meléndez, Esmeraldo Meléndez and Santos Rios, fishermen who are residents of Vieques, and the “Asodación de Pescadores de Vieques, Inc.”, a cooperative of Vieques fishermen. The Plaintiffs in Civil Number 78-377, which was filed on March 8, 1978, are Luis Medina, Jesús Medina, Mario Antolino Félix, Cristóbal Medina, Severino Ventura Cintrón, Héctor Medina, Cristóbal Medina, Jr., Enrique Garcia, Antonio Ayala González, Angel Ventura, and Daniel Medina, all fishermen and/or residents of Vie-ques, and Misión Industrial de Puerto Rico, Inc., an entity which is allegedly interested in advocating environmental causes. Intervention was also sought and allowed in this case on behalf of “Fundación Arqueológica, Antropológica e Histórica de Puerto Rico”, a non-profit corporation involved in research and preservation of historical and prehistorical cultural resources. The Defendants in this suit are the same as those in Civil Number 78-323, except for the addition of William R. Flannagan, Caribbean Commander of the Atlantic Fleet, Swain Wilson, Commandant of the United States Coast Guard, and unnamed John Doe Defendants. After various preliminary procedural interchanges, including a hearing in which a request for a temporary restraining order was denied in Civil Number 78-377, Civil Numbers 78-323 and 78-377 were consolidated. It is appropriate to briefly set forth the allegations in the various complaints. Plaintiffs seek to enjoin Defendant Navy from using any portion of its lands in Vie-ques, or in the waters which surround this Island, for the purpose of carrying out naval training operations. Broadly speaking, the complaints allege harm to all residents of Vieques, to its fishing and agricultural industries, to certain endangered species of plant and wildlife, to officially designated and unidentified historical sites and to private property, all as a consequence of Defendant Navy’s activities. The main thrust of Plaintiffs Romero Barceló’s allegations in Civil Number 78-323 is related to claims of violation by Defendant Navy of various environmental laws. These claims include the alleged failure of Defendant Navy to prepare and file an environmental impact statement pursuant to the National Environmental Policy Act of 1969 (42 U.S.C. §§ 4321 et seq.), as well as other substantive offenses thereunder, and alleged violation of the Federal Water Pollution Control Act of 1972 (33 U.S.C. § 1311), the Water Pollution Control Act of Puerto Rico (24 L.P.R.A. §§ 591, et seq.), Public Policy Environmental Act (12 L.P.R.A. §§ 1121 et seq.), and Executive Order No. 11752 (38 F.R. 34793); the Marine Protection, Research and Sanctuaries Act of 1972 (33 U.S.C. §§ 1401, 1411 and 1412); the Clean Air Act (42 U.S.C. §§ 7401 et seq.); the Noise Control Act of 1972 (42 U.S.C. §§ 4901 et seq.) and the general Nuisance Law of Puerto Rico (33 L.P.R.A. § 1365); the Resource Conservation and Recovery Act (42 U.S.C. §§ 6901 et seq.); the Endangered Species Act of 1973 (16 U.S.C. §§ 1531 et seq.); the National Historic Preservation Act (16 U.S.C. §§ 470 et seq.), and Executive Order 11593 (36 F.R. 8921); the Coastal Zone Management Act (16 U.S.C. §§ 1451 et seq.); the Marine Mammal Protection Act of 1972 (16 U.S.C. §§ 1361, et seq.); the Rivers and Harbors Act of 1899 (33 U.S.C. § 407); the First and Fifth Amendments to the Constitution, and Presidential Orders and Congressional restrictions relating to the transfer of military activities from the Island of Culebra, another off-shore municipality of the Commonwealth. The allegations of Plaintiffs Zenón et al are substantially a copy of the complaint of Plaintiffs Romero Barceló et al, with the exception that additional contentions are made with regards to violations of the Federal Relations Act of 1950 (48 U.S.C. § 749) and the Water Law of Puerto Rico (12 L.P.R.A. §§ 1501-1523). In Civil Number 78-377 Plaintiffs Medina et al, in addition to also relying on the previously enumerated claims, allege various other basis for relief, including a challenge to the taking and acquisition by Defendant Navy of the land on which the activities subject of these suits are carried out, allegations of violation of the Organic Act of 1900 (“Foraker Act”) (31 Stat. 77), the Organic Act of 1917 (“Jones Act”) (39 Stat. 951), the Federal Relations Act (64 Stat. 319, 48 U.S.C. § 731 et seq.), and of certain treaties (15 U.S.T. 1636), by virtue of Defendant Navy’s use of the navigable waters surrounding Vieques, and claims for damages arising by reason of Defendant Navy’s allegedly intentional and/or negligent actions, which claims are ostensibly grounded on the Federal Tort Claims Act (28 U.S.C. § 2671 et seq.). The contentions of Plaintiff Fundación are similar to parallel ones by Plaintiff Romero Barceló et al, based on the National Historic Preservation Act of 1966, supra, and Executive Order 11593, supra. For the present moment, suffice it to say that Defendant Navy’s answers put at issue Plaintiffs’ allegations and resulted in a trial lasting three months in duration. Sixty three witnesses, many of them leading authorities in various fields of expertise, as well as hundreds of exhibits were presented during the course of this legal marathon. Additionally, at the request of the parties, the Court conducted two field trips to various sites in and around Vieques. The Court consolidated the preliminary and permanent injunction hearings. Because these cases present such an all-inclusive challenge to Defendant Navy’s presence and activities in Vieques, we must commence our homeric voyage through this evidence with some relevant background discussion about the Island in question. II. Background A. Physical Biography Vieques is a long narrow island located approximately 6 miles off the Southeastern coast of the main Island of Puerto Rico and about 9 miles due South of its sister municipality of Culebra. It is nearly 20 miles long and 4.5 miles wide at its widest point, and is oriented on an East-West axis. The Island has an area of about 33,000 acres or 51 square miles of land. The topography of Vieques is dominated by a backbone of rolling hills several hundred feet in height leading up to Monte Pirata in its western extremity, which at nine hundred and eighty one feet is the highest point on the Island. The shores are principally composed of calcareous sandy beaches, interrupted by several rocky promontories, particularly in the eastern extremities, and in the points of the various half-moon bays located throughout the southern coast. There are fringe and offshore coral reefs mostly in the northern, eastern and southern sectors. The mean average temperature is 80° and the average annual rainfall is 46.23 inches, mostly concentrated in the central and western areas. There are no permanently flowing fresh water streams or rivers. Generally speaking the prevailing winds are from the East; however, they tend to bend towards the Northeast along the north coast and the South East along the southern shores. The ocean and wave action follow a pattern similar to that of the wind. The ocean currents are also generally wind-oriented from East to West, but tidal flow can affect this pattern substantially, particularly in the eastern and western extremities of the Island where the tide moves north when ebbing and south when flooding. The biota of Vieques is typical of a Caribbean Island with low population density but contains some unique features as well. The flora is in large part determined by the various humidity zones as well as the present land use, a matter we shall presently deal with in greater detail. Suffice it to say for the moment that it generally tends to run from thorny brush in the East to lusher vegetation in the West, the central strip being subjected to some cultivation of minor crops. Scrub grass covers much of the bare ground throughout Vieques. There are several large stands of mangrove along the coast, the most important of which are in the vicinity of Punta Arenas in the West, and surrounding Puerto Mosquito, Puerto Ferro and Ensenada Honda on the South. Inland from these are generally found dryland forests of ucar (Bucida hue-eras ). Many areas of the ocean floor in the immediate vicinity of the coast are covered with stands of sea grasses, mostly of the thaiassia variety, the largest of these concentration starting West from Punta Cabal-lo on the North coast and fanning around Punta Arenas to the South West. There are also large seagrass areas in the South in Ensenada Honda and in Bahia Salinas del Sur. Vieques’ animal life includes several species of particular interest to the present action. In addition to the usual complement of fish and bird population there are present in Vieques six species which are designated as either “endangered” or “threatened” pursuant to statute or regulations. These are the brown pelican (Pelecanus occidentalis), the manatee (Trichechus manatus), the leatherback turtle (Dermochelys cariocea ), the hawksbill turtle (Eretmochelys imhricata ), the loggerhead turtle (Caretta caretta), and the green turtle (Chelonia mydas ). Three coves in the Southern coast of Vie-ques (Puerto Mosquito, Puerto Ferro and Bahia Tapón) contain an unusual phenomena found occasionally in protected shorelines of tropical waters, within very particular physical and biological parameters. This phenomena is known as bioluminescense, a process which has not been fully explored scientifically but which is believed to be related to the presence of microscopic dinoflagellate activated by specific physical circumstances. B. Pre-History and History A brief look at Vieques’ pre-history and history will give us some insight into the problems we are faced with in the present case. The first semi-permanent inhabitants of Vieques were Carib Indians. They arrived in the period immediately preceding the discovery of Vieques by Christopher Columbus (1493), and for various decades thereafter. These sea-going tribes came up from the northern coast of South America via the Lesser Antilles and used Vieques as a base from which to carry out their fierce raids into Puerto Rico. Prior thereto, commencing as far back as perhaps 850 A.D., various migratory waves of Arawak Indians which originated in the Orinoco Basin, passed through the Island on their way to more permanent abode in Puerto Rico and Hispanola. In historic times, Indians from Puerto Rico and St. Croix, Virgin Islands moved to Vieques to escape the Spanish conquest. The Spanish forces sent to conquer Vieques had little influence on the native population living there and no attempt was made by Spain to colonize the Island at this point. During the 17th and 18th Centuries the French, English, Dutch and Danes all attempted to establish footholds on Vieques. In 1673 the Spanish attacked and destroyed the colonial population and thereafter continued to send military expeditions from time to time. In 1816, colonists from Saint Thomas and St. Croix asked and received permission to establish a livestock industry in Vieques, and thus began what is today the Island’s dominant agricultural activity. One year later the Governor of Puerto Rico delegated authority to one of these colonists and thereafter a fort was built at Isabel Segunda, the capital of Vieques. By 1828 the population of Vieques was 122 engaged mostly in timber harvesting for export to the Virgin Islands, in the growing of crops and livestock, and in fishing. After 1869, economic activity increased and sugar cane became the leading crop. In 1898, and as a result of the Spanish-American War Vieques together with the rest of the present-day Commonwealth of Puerto Rico became a territory of the United States. Through the early 1940’s, the principal activities in Vieques were the growing of sugar cane and livestock, and fishing. The total population throughout this period fluctuated between 6,000 and 12,000. The population of Vieques according to the 1970 census, was 7,767 persons of which 2,378 lived in Isabel Segunda and 620 in Esperanza, the Island’s two towns, and 4,769 were classified as rural inhabitants. Sugar is no longer of any relevance, and the principal agricultural endeavours are related to the planting of some minor crops, and to livestock. Fishing is still of importance to the local inhabitants. As previously stated, Vieques is a civilian municipality of the Commonwealth of Puerto Rico. It is divided into seven wards (“barrios”): Puerto Diablo, Puerto Ferro, Puerto Real, Florida, Mosquito, Llave and Punta Arenas. During the period from 1939 to 1944, Defendant Navy acquired title by purchase to 26,000 of the 33,000 total acres of Vieques. This property is physically divided into two sections and is bisected by the civilian area of Vieques. (See Appendix A). The eastern part of the naval reservation includes Barrio Puerto Diablo and most of Barrio Puerto Ferro. The western part begins at a north-south line which commences west of Punta Caballo and continues south to the eastern end of Laguna Playa Grande. It includes the barrios of Punta Arenas, part of Mosquito, Llave and Florida. There is also an additional area in the middle of civilian sector known as Barriada Monte Santo, to which Defendant Navy holds title but in which there has been considerable civilian squatting with Defendant Navy’s knowledge and acquiescence. III. Defendant Navy’s Activities in and around Vieques Generally speaking, in the eastern sector are located a Marine Corps facility known as Camp García, a 5000 foot airstrip not presently in active use, a heliport, a field ammunition depot, the bulk of the beaches used for amphibious landings, an observation post complex on top of Cerro Matías, and the various ordinance impact zones, with related targets. The western sector is mainly used for the storage of ammunition in the bunkers spread throughout this area, as well as for quarrying, some amphibious operations, and some of the non-firing small unit training. Also in this sector is located a breakwater-pier at Desembarcadero Mosquito, an administrative center, and an electronic warfare facility on the summit of Monte Pirata. Defendant Navy’s properties in Vieques are part of a much larger and inclusive military complex known as the Atlantic Fleet Weapons Training Range, which consists of four ranges: the inner range in the east end of Vieques, previously alluded to; the outer range, which is an ocean range extending both north and south of Puerto Rico and to the east; the underwater tracking range at St. Croix, Virgin Islands; and an electronic warfare range. All of the operations of these various ranges are directed from a center located at the Roosevelt Roads Naval Station in Ceiba, Puerto Rico, approximately 7 miles northeast of Vieques across Vieques Sound. The outer range is at least 35 miles north of Vieques and 20 miles to the south. On this range are conducted various surface and anti-aircraft gunnery exercises as well as missile exercises, including surface-to-air, surface-to-surface, air-to-surface and air-to-air training. The underwater tracking range is located in waters varying in depth from 200 fathoms to 500 fathoms off the western shore of St. Croix (and southeast of Vieques), and encompasses 21 square nautical miles. This range is used for training for accurate three-dimensional tracking of surface and underwater objects. The electronic warfare range is a complex of so-called threat platform simulators located at various sites in Puerto Rico and adjacent islands, including Monte Pirata as previously stated, as well from one sea-going location. These facilities provide a realistic electronic environment for the training of shipboard electronic warfare teams and tactical electronic order-of-battle, in support of exercises and operations conducted on the various other ranges. A. The inner range The inner range (see Appendix B), which consists of air-to-ground, ship-to-shore, and artillery targets, is locally controlled from the observation post previously mentioned atop Cerro Matías. The post is surrounded by a 1200 yard safety zone into which no ordnance may be discharged. The public is notified that the range will be used through notices to airmen, notices to mariners and fishermen’s notices. Fishermen’s notices indicate the schedule of activities for the following week and include a map of the island of Vieques for aid to the reader in determining the activated areas. These notices are widely distributed and posted, including at the fishermen’s cooperative. In the event of a change in activities, a written schedule is printed and distributed at least 24 hours in advance to fishermen. Defendant Navy does not restrict access to the waters in the danger zone at Vieques except shortly prior to, during, and immediately after training operations utilizing these waters. This range normally opens at 7:30 A.M., with firing commencing at 8:00 A.M., and usually closes at 10:00 P.M. When the range is active, a red eight-foot square flag is flown from a 15 foot pole above the observation post during the daylight hours, and a red rotating beacon is operated at all times. Prior to commencing range use, a patrol aircraft covers the water areas around the Island to assure that the area is clear. When required, a patrol boat is also used for this purpose. The range control officer on location can visually observe the entire land mass area and the surrounding sea and air space for considerable distances. Additionally, there are two radars observing the surface water area and to maintain the position of ships while firing on the range. In the event of unauthorized entry on the range while the same is in use, the range officer immediately halts the firing and personnel is dispatched to clear the range fouler. The United States Coast Guard provides assistance for such contingencies in the danger areas of the surrounding waters. There have been occasions when ships or aircraft have disregarded safety precautions incorporated in the range user’s manual or the range officer’s instructions. The range officer has authority, which has in fact been exercised at times, to order an offender off the range. In addition to fire control and related safety measures, one of the principal functions of the observation post is the scoring of the firing. This is accomplished visually, in the case of ship-to-shore firing, and by television in the case of air-to-ground bombing. The eastern boundary of the inner range is a north-south fire break, approximately 20 meters in width, running from a point just west of Bahía Playa Blanca and continuing directly south to the shore west of Cerro Indio. This boundary is referred to by Defendant Navy as the “Eastern Friendly Front Line.” No ordnance is used east of this demarcation. Immediately to the west of this line commences the Air Impact Area and Close Air Support Zone (AIA/CAS) which extends west to another north-south fire break known as the “Western Friendly Front Line.” This line commences on the shore of Bahía Icacos and runs directly south past the eastern edge of an unnamed lagoon, to the beach at Bahia Salinas del Sur. The area between the two “Friendly Lines” is also known as the Naval Gunfire Support Range (NGFS). West of the Western Friendly Front Line is the Surface Impact Area (SIA) which runs to another north-south boundary commencing from a point west of Bahía Fanduca in the south, to the north shore three fourths a mile east of Puerto Diablo. A cattle fence, which is approximately 1,000 yards west and parallel to this SIA boundary, marks the western most extension of the inner range. Since most of the controversies in this case arise out of Defendant Navy’s activities within inner range, we shall describe these and the facilities therein located with greater detail. (1) The targets The inner range contains two bullseye targets, referred to as Targets 1 and 2. These are used for inert ordnance practice with Mark 76 practice bombs and 2.75 mm. inert rockets. Live ordnance is never used on these targets. Target 1 is located approximately half way up on the Western Friendly Front Line. It is 400 feet in diameter and consists of 4 concentric rings of tires, 50 feet apart. Target 2, which is made up of three similar rings 300 feet in diameter, is located approximately two statute miles west of Target 1. At the southern extremity of the Western Friendly Front Line is located a strafing target. Again, only inert ordnance is used against this target. The AIA/CAS zones are the air-to-ground live ordnance target areas. The targets consist of realistic mockups of an airstrip, a fuel farm, a motor pool, an ammunition dump, SAM rocket sites, and numerous targets of opportunity such as tanks, a convoy and airplanes. (See Appendix B). There is also one stationary water target currently active located about a mile off the eastern tip of Punta Este and consisting of a floating buoy. It was installed for inert, air-to-ground activity and has been used very infrequently. A Mark 33 SEPTAR, which is an 18 foot drone target boat operated remotely from Cerro Matías, is sometimes operated in Bahia Salinas del Sur for air-to-ground exercises using inert ordnance. In August of 1977 a target barge was anchored off the southeastern tip of Vie-ques for about a month. A guided 500 pound inert glide bomb called SMART ROC was fired at it. All of the targets described above in the inner range, with the exception of the water targets, were installed and operational by the end of 1971. Some of the targets in the SIA and AIA were in use for some years prior to that. (2) Air-to-ground activities The type of aircraft usually involved in ordnance delivery on the AIA/FAS targets and on the two bullseye targets are A — 4, A-6 and A-7 fix wing jet aircraft flying either from carriers lying offshore or from the Roosevelt Roads Station. It is standard procedure to conduct safety and range use briefings for all range users, including air crews. These procedures are outlined in the range user’s manual and will be discussed hereinafter. Coming out of Roosevelt Roads aircraft take off on a heading of either 060° M and turn on a radial of 100° M headed out to an area 3 miles off the central Vieques coast. In a warning area north of Vieques known as Whiskey 428, the radial 100° M intersects Defendant Navy’s operational area. Aircraft in this area must file a flight plan and are controlled by the Federal Aviation Administration (F.A.A.). At this point aircraft will be at about 6-7000 feet in altitude, climbing and proceeding easterly until they reach an area directly off Punta Este where they will begin a turn to the south. The aircraft must maintain altitude until they are inside a restricted area south of Vieques known as Romeo 7104, and then must descent immediately to an altitude of about 8000 feet and proceed over the target low enough to identify the same. If the point of origin of aircraft coming into the inner range is an aircraft carrier operating in the north, they are required to pass through a designated area known as Point November, about 4 miles north of Vieques. The aircraft come in on a southerly heading through Point November at an altitude of between 12-15,000 feet. This altitude reservation is pre-established by agreement with the F.A.A. If the aircraft carrier is operating to the south of Vieques, aircraft come in through Romeo 7104 as it lines up with Whiskey 428, in a two mile wide corridor on a northerly heading. Normally aircraft come over the range area in groups of 3 or 4, 5 aircraft being the maximum that Targets 1 and 2 can handle in a pattern. Aircraft loaded with either inert or live ordnance are not permitted by range regulations to overfly any civilian area, and no credible proof was presented during the trial of any practice to the contrary. After the target identifying run, the aircraft must assume a course pointed at the designated target and with wings level, whereupon he is declared “cleared hot” after visual observation of the range control officer stationed at the observation post atop Cerro Matías. Thereafter the pilot is permitted to arm the aircraft’s master switch and to fire when he gets within the correct range. As the aircraft pulls off the target, it is required to advise the range officer that the master switch is on a “safe” position so that no ordnance may leave the plane. The minimum separation interval between different aircraft firing is 30 seconds. The second aircraft is not permitted to fire until the first aircraft over the target calls in that its master switch is “safe.” For bombing runs aircraft typically pass over target at about 1500 feet. In strafing, aircraft turn at about 3000 feet, fire at about 500 feet and pull out over the target at about 200 feet. The course headings for the various targets are predetermined. The approach for Targets 1 and 2 and for the strafing target is from the south, on 010° M headings. Over Target 1 the pilot must make a right-hand turn off the target, except in instances where Target 2 is not activated when he may request a left-hand turn. The normal pattern for Target 2 is counterclockwise. In a left-hand turn off Target 2, the closest distance to the civilian sector is about 5.8 miles (to Barrio Santa María). The approach to the AIA/CAS targets is also from the south on courses of between 330° M and 030° M. Over the AIA/CAS targets the normal pattern is a right hand turn, although a left-hand turn can also be requested. (3) Ship-to-shore activities As previously intimated ship-to-shore firing is also conducted in the inner range. This takes place into the same AIA/CAS zone, on six point targets located around the shoreline of Bahía Salina del Sur and on two area targets. As in the case of air-to-ground range users, ships crews must receive a briefing prior to arrival on the range. Ships fire only from the waters to the south of Vieques. Upon arrival at the range, each ship must work its way through the range, visually identifying each one of the point targets and plotting them on a chart. The naval gunfire range can accommodate two ships maneuvering on the range at one time, but only one ship can fire at a time. During gunfire, except on rare occasions, the ships are between three to eleven miles from the shoreline. As previously stated, while firing the ship’s position is monitored by the observation post’s radar. Only live ordnance is used by ships as it has been found that inert naval ordnance creates a safety and scoring problem by its propensity to ricochet and its difficulty of observation. When ship-to-shore firing is scheduled, air-to-ground activity is restricted to Target 2. (4) Field artillery To the west of Cerro Matías is located the SIA, previously described, which is the Marine Corps artillery range. This is the live ordnance target area which is closest to the civilian populated areas. It is approximately 6.2 miles form Barrio Santa Maria. This type of practice involves the firing of howitzers, singly or in batteries, from positions along the vicinity of the SIA’s western boundary toward targets near the Western Friendly Front Line, that is, from west to the east. Howitzer activity normally occurs only twice a year during the Marine amphibious exercises which will be subsequently discussed. B. The Ground Maneuvering Area (GMA) The GMA is the principal Marine Corps training area in Vieques. This area is located within the zone comprised from the cattle fence previously described, which is the eastern boundary, all the way to the western property line contiguous to the civilian sector. The property line is marked by a chain link fence, topped by barbed wire. (1) Camp Garcia On the south western extremity of the GMA is the Marine camp previously referred to, Camp Garcia. This camp has sufficient facilities to accommodate several thousand troops, although its present complement is about 150 men. Camp Garcia has been operational since the early 1940’s although improvements and additions have been carried out until recent times. The intensity of its use has fluctuated with the variated state of world affairs. The airstrip which is adjunct to the base is operational but has only been used once in recent years and this was to allow an emergency landing by a civilian aircraft. Air transport to the base is conducted through a heliport located on a grassy field. The frequency of use of the heliport depends in large part on the training pressures of the GMA. Normal helicopter traffic in and out of Camp Garcia, or the pads atop Monte Pirata and Cerro Matías, does not overfly the civilian sector of Vieques. (2) Amphibious landings The GMA contains the beaches wherein the Marines conduct the bulk of their amphibious landings in Vieques. The principal landing beaches are called Red Beach and Blue Beach and are located on the south coast in an area designated as “Amphibious OP Area South”, which runs from Punta Conejo on the east to Punta Negra on the west. Both beaches are immediately to the north of two cays approximately 2V2 miles apart but which are confusingly enough both called “Cayo Chiva.” Yellow Beach, which is south of Cerro Matías in the immediate vicinity of Punta Matías, is rarely used because of the other activities that are conducted in the SIA zone. On the north coast, in the “Amphibious OP Area North”, is located Purple Beach between Punta Goleta and Punta Campanilla. Purple Beach is also used infrequently. A typical landing exercise on OP Area South involves various support ships in the vicinity of the south coast off the restricted area south of Red and Blue Beaches. Those are large amphibious attack transports from which are launched the landing craft and amphibious tracked vehicles. These vessels proceed to the beaches where they land the troops as well as supporting tank, field artillery and vehicle units. In recent years these exercises have included vertical envelopment landings by helicopter-borne troops. These are sometimes conducted independently of conventional amphibious operations. Those maneuvers include helicopter carriers within the supporting fleet. The troop landings take place inland of the conventional landing beaches. Landings are usually accompanied by realistic low-level support flights by Marine air units of fixed wing, jet aircraft or helicopter gunships. If ordnance is used, this is expended within AIA/CAS zone. Naval units may be involved in activities related to the NGFS area. Upon landing the troops engage in various tactical maneuvers throughout the GMA related with the securing of predetermined objectives in the area. At times, the landings are opposed by “enemy” troops, which have periodically included units of the Puerto Rico National Guard. As part of these activities the howitzer exercises previously described are carried out. After the exercises are completed, the troops and their equipment are normally embarked in the same manner as landed. The amphibious exercises previously described usually take place throughout the year and in various degrees of complexity, involving from a score of men to various thousands of troops, and from one vessel to large supporting fleets. They can also be independent of other Naval activities or be part of “sequential” operations in which the different segments of a naval force (aircraft, ships and landings) are coordinated in a hopefully well-timed sequence. C. The Naval Ammunition Facility (NAF) As previously indicated, the NAF covers the entire portion of Vieques to the west of the civilian sector. Before we discuss the principal activity in this area we should state that it contains a designated landing zone in the south western coast. This landing area is sometimes used for infiltration type exercises by small units. The NAF is not properly a part of the Inner Range, although it may indirectly support its activities. It is a division of the weapons department of Roosevelt Roads and its main function is as a magazine for the storage of ammunition for both ship-to-shore and air-to-ground firing. The principal “client” of the NAF is of course Defendant Navy, but it also stores ammunition for the Puerto Rico Air and Army National Guard. A link wire fence, again topped by barbed wire, separates the NAF from the civilian sector. It has two guarded gates and its perimeter is secured by roving patrols. Ordnance is stored in 102 bunkers spread throughout the NAF, of which only 76 are presently in use. They are an average of 450 feet away from each other and are designed and built in such a manner that if one were to explode, no damage would occur to another magazine or any off-station location (from which the nearest is 2000 feet away). The bunkers are periodically inspected by several levels of supervision, as often as on a monthly basis. The last major inspection of the magazines was conducted by the Naval Sea Systems Command on May 15, 1978. No deficiencies were found. The ammunition is landed in Vieques from civilian cargo ships docking at Mosquito Pier in the north coast. There is also an ammunition anchorage area off this sector for ships that may have to await approaching the dock. Ammunition may be moved from the NAF to the GMA through the civilian sector. This consists of anything from 5.56 caliber small arms rounds up to 175 millimeter howitzer ammunition. Eighty-one millimeter white phosphorous smoke rounds are also occasionally moved to Cerro Matías. The ordnance is transported by pick-up trucks when it is small amounts, or in a larger truck when large amounts are involved, with an escort in front and in back. The ammunition-carrying vehicle is identified with a placard and red flags in accordance with Department of Transportation regulations. 49 C.F.R. 177.823. The boxes of ordnance are also marked with signs clearly signifying that they are mass detonating high explosives. 49 C.F.R. 172.1 et seq. Prior to hauling ammunitions in a truck, the truck is inspected for 23 items by the driver. The drivers who haul ammunition are specially trained and tested. Only naval personnel who have been specially trained handle ordnance on Vieques. Two overland routes are used to transport munitions from the NAF to the GMA. One is through the front gate on the north side of the Island and through Isabel Segunda. The second is through the back gate on the south side of Vieques, which route is used most frequently because it passes through areas with fewer people and less traffic. There has not been any known accident from handling ammunition on Vieques. We thus arrive to the legal issues raised by Plaintiffs’ complaints. IV. THE LEGAL ISSUES A. Preliminary Questions Raised by Defendant Navy’s Motion to Dismiss Shortly before the commencement of trial Defendant Navy filed a Motion to Dismiss. Because of the tardiness of this filing the Court decided to take it under advisement and allow opposing counsel to file opposition thereto. No opposition was in fact filed, although some of the issues were covered by Plaintiffs Romero-Barceló et al. in their brief. (1) The Party Defendants All complaints except that of Plaintiff Fundación, attempt to state claims against Defendants in their individual as well as official capacities. These complaints however, are silent as to the personal involvement of any of these Defendants, nor do they specify what claims are stated against which Defendant in their individual capacities. The rule that constitutional and other claims against government officials in their individual capacities must be pleaded with specificity has thus been violated. Rotolo v. Borough of Charleroi, 532 F.2d 920, 922 (C.A. 3, 1976). Furthermore, it is well established that Federal officials are not vicariously liable for the acts of their subordinates, Black v. United States, 534 F.2d 524, 528 (C.A. 2, 1976), and Plaintiffs must show a direct involvement or responsibility on the part of each of the named Defendants in the action of which they complain. Rizzo v. Goode, 423 U.S. 362, 371, 375-376, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). On all these counts Plaintiffs have failed and thus the actions against Defendants as individuals must be dismissed. The allegations in Plaintiffs Medina et al’s complaint against “John Doe” and “Unknown Federal Agents” must also be dismissed as there is no provision in the Federal Rules of Civil Procedure for suit against persons under fictitious names. See: Rules 4(d)(1); 10(a), 17(a) Fed.R.Civ.P.; McDonald v. General Mills, Inc., 387 F.Supp. 24, 33 (E.D.Cal., 1974). (2) The actions that seek damages for allegedly tortious conduct Although the United States is not named as a party Defendant, the various nuisance and tort claims are in reality claims against the sovereign. In determining this, we are not bound by the naming of individual Defendants nor by Plaintiffs’ characterization of the suit. Sportique Fashions, Inc. v. Sullivan, 421 F.Supp. 302, 305 (N.D.Cal., 1976). Pursuant to Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963), a suit is deemed to be against the sovereign if the judgment would expend itself on the public treasury or interfere with public administration. See also Smith v. Grimm, 534 F.2d 1346, 1351 (C.A. 9, 1976), cert. den. 429 U.S. 980, 97 S.Ct. 493, 50 L.Ed.2d 589 (1976). These claims have precisely that effect, particularly where there is no allegation or proof that any of Defendants took any action beyond the scope of their authority. They thus qualify for absolute immunity as to common law torts and statutory claims under Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959); Howard v. Lyons, 360 U.S. 593, 79 S.Ct. 1331, 3 L.Ed.2d 1454 (1959); Sportique Fashions, supra, at 305-306; as the import of these claims would only fall upon the United States. Larson v. Domestic & Foreign Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949); Minnesota v. United States, 305 U.S. 382, 59 S.Ct. 292, 83 L.Ed. 235 (1939); Commonwealth of Mass. v. U. S. Veteran’s Administration, 541 F.2d 119 (C.A. 1, 1976). It is elementary that the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., constitutes an express, but limited waiver of sovereign immunity. Although negligent actions of government agents constituting a common law tort may be sued upon, intentional torts are specifically excluded from this waiver. 28 U.S.C. § 2680(a), (h). See Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). Claims against the Government based upon the concept of nuisance however, are included. In Re: Silver Bridge Disaster Litigation, 381 F.Supp. 931, 967 (S.D.W.Va., 1974). But the statute specifically requires an initial presentation of the claim to the appropriate federal agency and a final denial by that agency as a prerequisite to suit. 28 U.S.C. § 2675. This requirement is jurisdictional and cannot be waived. Bialowas v. United States, 443 F.2d 1047, 1049 (C.A. 3, 1971); Collazo v. United States, 372 F.Supp. 61 (D.P.R.1973). Plaintiffs have made no allegation nor presented any evidence to show compliance with this prerequisite. The consequence of this situation is that the nuisance claims of Plaintiffs Romero Barceló, et al, Zenón et al and Medina et al, to the extent they may be interpreted as seeking damages, and the intentional and/or negligent conduct counts of Plaintiffs Medina et al’s complaint, must be dismissed for lack of jurisdiction. (3) Plaintiffs Medina et al “taking” claims Plaintiffs Medina et al claim that they have been deprived of their property without just compensation when agents of the United States purchased a large number of private tracts in Vieques in “about 1941”, which tracts are now part of the lands used by Defendant Navy. Here again we see that the real party is the United States and not the named individual Defendants. With the exception of one Plaintiff, Angel Ventura, none of the other Plaintiffs have any standing to sue as they do not even allege to have been “deprived” property owners. In any event, these claims are subject to the provisions of the Tucker Act, 28 U.S.C. §§ 1346(a)(2), 1491, under which the Plaintiffs would have to sue. Dow v. United States, 357 U.S. 17, 21, 78 S.Ct. 1039, 2 L.Ed.2d 1109 (1958). The statute of limitations under this legislation is six years measured from the time when the cause of action first accrues against the Government. 28 U.S.C. § 2501. Camacho v. United States, 494 F.2d 1363, 204 Ct.Cl. 248 (1974); Castro v. United States, 500 F.2d 436, 205 Ct.Cl. 534 (1974). The time of taking is the date when the United States first enters into possession or files a declaration of taking, whichever is earlier. Dow v. United States, supra. Thus the time for filing a suit against United States would have expired in “about 1947”, and a suit filed in 1978, as in the present ease, is absolutely time barred. See Camacho v. United States, supra. B. The Federal Water Pollution Control Act Plaintiffs’ claims under the Federal Water Pollution Control Act (33 U.S.C. §§ 1251-1376, as amended), referred to in this Section as the “Act”, fall into two categories: (1) that Defendant Navy is required to obtain a National Pollution Discharge Elimination System (NPDES) permit for its discharge of sewage at Camp García and for the alleged discharge of ordnance from ships and planes which fall into the sea surrounding Vieques; (2) that the Defendant Navy is violating various Puerto Rican laws incorporated by reference into this Act (see 33 U.S.C. § 1323). The uncontroverted evidence presented, including the testimony of the President of Plaintiff Environmental Quality Board, clearly establishes that Defendant Navy no longer discharges treated sewage effluent from its plant at Camp Garcia into the waters surrounding Vieques. This operation has been converted to a land discharge, for which no permit is required under the Act. As to the discharge of sewage by Defendant Navy’s vessels into the surrounding sea, although there is no direct evidence presented of this taking place, the nature of Defendant Navy’s operations make this a distinct possibility. The evidence is however, that with the exception of landing barges, these vessels operate beyond the three-mile limit, which is the maximum geographical coverage of the Act. 33 U.S.C. § 1362(7), (8) and (12). Furthermore, the Secretary of Defense has exempted these vessels from marine sanitation requirements pursuant to authority conferred by the Act. 33 U.S.C. § 1322(d) It is our opinion that the majority of the ordnance that falls into the waters surrounding Vieques does so by chance, although it appears that this may happen with some frequency in the waters in the immediate vicinity of Bahía Icacos and Bahia Salinas del Sur in the AIA/CAS/NGFS zones. Furthermore, as previously stated, a water target exists east of Punta Este which lies within the “territorial seas.” 33 U.S.C. § 1362(8). We must decide whether these accidental bombings of the navigable waters, and the occasional intentional bombing of the water target, require that Defendant Navy obtain a NPDES permit. The conduct that requires an NPDES permit is “the discharge [or runoffs] of any pollutants” (emphasis added), 33 U.S.C. § 1311(a), § 1323(a). The term “discharge of any pollutant” means: . . (A) any addition of any pollutant to navigable waters from any point source. (B) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft.” (Emphasis added). 33 U.S.C. § 1362(12). “Pollutant” is defined as: “. . . dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal and agricultural waste discharged into water. . . . ” “Point source” in turn is defined as: “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. . . (Emphasis supplied) 33 U.S.C. § 1362(14). It would be a strained construction of unambiguous language for the Court to interpret that the release or firing of ordnance from aircraft into the navigable waters of Vieques is not “. . . any addition of any pollutant . . . from any point source . . . ”, particularly in view of the broad rather than narrow interpretation given to this type of statute, United States v. Standard Oil Co., 384 U.S. 224, 86 S.Ct. 1427, 16 L.Ed.2d 492 (1966); United States v. Republic Steel Corp., 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960); Minnehaha Creek Watershed District v. Hoffman, 597 F.2d 617, 625 (C.A. 8, 1979); United States v. Hamel, 551 F.2d 107, 112 (C.A. 6, 1977); United States v. Ashland Oil and Transportation Co., 504 F.2d 1317, 1328-1329 (C.A. 6, 1974). We are forced to so conclude notwithstanding the fact that the agency charged with administration of this Act, the Environmental Protection Agency, does not appear to have any regulation which provides for the issuance of a NPDES permit under circumstances such as herein presented, and further notwithstanding that we find that no credible evidence was presented to the Court to the effect that any of the materials deposited in the waters surrounding Vieques as a result of the aforementioned activities has had any measurable deleterious effects on the environment, or on the quality of the surrounding waters, from a scientific vis-a-vis legal standpoint. Nevertheless, we hold that as the Act now reads, Defendant Navy is required to have an NPDES permit to cover the accidental or intentional release or firing of ordnance into the areas herein discussed. Train v. Colorado Public Interest Group, 426 U.S. 1, 7, 96 S.Ct. 1938, 48 L.Ed.2d 434 (1976); E.P.A. v. State Water Resources Control Board, 426 U.S. 200, 205, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976). The second aspect of this issue is called into play by the provisions of 33 U.S.C. § 1323(a), which states: “Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants, and each officer, agent, or employee thereof in the performance of his official duties, shall be subject to, and comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental entity including the payment of reasonable service charges. . . . ” (Emphasis added). It is the contention of Plaintiffs that accidental and intentional ordnance dropping into the water areas previously indicated violates various Puerto Rican legislation, namely the Water Pollution Control Act (24 L.P.R.A. § 591 et seq.) the Public Policy Environmental Act (12 L.P.R.A. § 1121, et seq.) and the Water Pollution Control Regulation, promulgated thereunder. The Public Policy Environmental Act, supra, is a statute which, as the title implies, generally sets out the Commonwealth’s environmental posture and establishes the Environmental Quality Board to administer it. There is little of a specific nature in this statute on which we can hang our legal hat for purposes of the present issue. It is in the Water Pollution Control Act, supra, that we find a specific relevant prohibition (24 L.P.R.A. § 595): “It shall be unlawful for any person, directly or indirectly, to throw, discharge, pour, or dump, or permit to be thrown, discharged, poured or dumped into the waters, any organic or inorganic matter capable of polluting or of leading to the pollution of said waters in such manner as to place them out of the minimum standards of purity that the [Environmental Quality Board] may establish under section 599 of this title.” (Emphasis supplied). That statute defines “pollution” as follows: (24 L.P.R.A. § 591(i): “ ‘To pollute’, with reference to waters, means making them in any way noxious to human health, or to that of animals, vegetables or fish, or rendering them ill-smelling or impure, all according to the permissible standards of purity or impurity heretofore or hereinafter established as provided herein. ‘Pollution’ has this same meaning.” (Emphasis supplied). “Discharge” is defined as (24 L.P.R.A. § 591(j)): “. . . [T]he terminal of a sewer system, large or small, collective or individual, or of a discharge of industrial refuse or any other kind of refuse, where it emerges to be dumped into the waters.” This language, together with that statute’s definition of “sewage”, “industrial waste” and “other[s] kinds of refuse leads us to conclude that the prohibited acts under the Puerto Rican legislation are narrower in scope than those under the “Act.” To begin with, upon reading this statute we are left with the clear impression that it is only meant to cover normal endeavors of human activity producing sewage and industrial water through pipes and similar devices, and not military operations of the type here in question. Apart from that however, the activity has to either make the water noxious to humans, animals, etc. or violate specific standards of water purity. We have already stated that no credible evidence was adduced establishing that the activities of Defendant Navy have made the water noxious. Thus assuming it was the intention of the Puerto Rican Legislature to apply this statute to the naval operations of the Defendant Navy in Vieques, we must look to the regulations to determine whether a standard of purity established thereunder has been violated. Plaintiffs rely on the applicability of the “Water Quality Standards Regulations” of Plaintiff Environmental Quality Board. This regulation is intended to promulgate water quality standards for the coastal and surface waters of Puerto Rico, (Art. 3), and prohibits the pollution of these waters (Art. 4.1.1) or the discharge of any water pollutant (Art. 4.1.2). The water quality standards are the following: “2.1 Gene»/ water quality standards. All waters shall meet generally accepted aesthetic qualifications and shall be capable of supporting diversified aquatic life. These waters shall, except as specifically noted, meet the following quality standards: 2.1.1 Solids and other matter. The waters of Puerto Rico shall not contain materials attributable to discharges that will settle to form objectionable deposits. Nor will they contain floating debris, scum, oil and other floating materials attributable to discharges in amounts sufficient to be unsightly or deleterious. 2.1.2 Color, odor, taste or turbidity. The waters of Puerto Rico shall be free from color, odor, taste or turbidates attributable to discharges in such a degree as to create a nuisance. 2.1.3 Substances in toxic concentrations thereof The waters of Puerto Rico shall not contain substances in concentrations or combinations which are toxic or which produce undesirable physiological responses in human, fish or other animal life, and plants. A. Specific standards for some substances: i) Coastal waters The maximum allowable concentrations of certain substances in the receiving coastal waters shall be the following: Substance Limit (mg/1) Arsenic (As) 0.15 Barium (Ba) 1.0 Boron (B) 4.8 Cadmium (Cd) 0.005 Carbon (Chloroform extract) 28.0 Chromium (hexavalent (Cr.) 0.05 Chromium (trivalent (Cr.) 0.30 Copper (Cu) 0.05 Cyanide (CN) 0.01 Detergents (Methylene Blue (Active Substances) 0.5 Fluorides (F) 1.3 Iron (Fe) 0.200 Lead (Pb) 0.015 Manganese (Mn) 0.100 Mercury (Hg) 0.001 Nitrogen (N03 N02 NH3) 5.0 Phenols .010 Selenium (Se) 0.01 Silver (Ag) 0.001 Sulfate (S04) 2800. Uranil (U02) 0.500 Zinc (Zn) 0.050.” (Emphasis supplied) Defendant Navy makes much ado about the unconstitutional vagueness of these provisions. See Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926); Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939); Cramp v. Board of Public Instruction, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285 (1961); but see: Cerame Vivas v. Secretary of Health, 99 P.R.R. 44 (1976). However, this is an issue we need not decide as this regulation is clearly inapplicable to Defendant Navy’s operations presently at issue. The key word in the quality standards reproduced above is “discharges.” The regulation defines this term as follows: “ ‘Discharge (to), Discharge’ — The outflow of wastewater from any domestic, commercial, industrial, agricultural or any other source into receiving waters.” (Emphasis supplied). Art. I. When we seek the definition of “waste-water” in the regulation we are referred to the definition of “municipal wastes”, which states: “Water carrying human and animal wastes from homes, buildings, industrial establishments and other places alone or in combination with industrial wastes.” (Art. I.) We see no plausible way of interpreting the accidental or intentional bombing or sheltering of the coastal waters as falling within the proscribing language of the regulation. This of course, is in keeping with our prior interpretation of the language of the Statute which authorizes this regulation. Furthermore, the record is barren of any credible evidence which would support a finding that Defendant Navy has conducted any activity violative of the specific standards of Article 2.1.3 Ai) of this Regulation or that the waters in question do not “meet generally accepted aesthetic qualifications” or are not “capable of supporting diversified aquatic life.” In fact, if anything, these waters are as aesthetically acceptable as any to be found anywhere, and Plaintiffs’ witnesses unanimously testified as to their being the best fishing grounds in Vie-ques. C. The Marine Protection, Research and Sanctuaries Act Plaintiffs’ claim to the effect that Defendant Navy’s activities violate the Marine Protection, Research and Sanctuaries Act, also known as the “Ocean Dumping Act”, and referred to in this section as the “Act”, 33 U.S.C. § 1401 et seq., are clearly without merit. It is Plaintiffs’ contention that Defendant Navy’s discharge of ordnance in the waters off Vieques as well as related activities during the course of military operations, constitute “dumping” which requires a permit from the Environmental Protection Agency, a permit which Defendant Navy lacks. It cannot be disputed but that the complained of activities are incidental to military training exercises and that the purpose of Defendant Navy’s activities are said exercises rather than the disposal of waste. The definition of “dumping” contained in the Act excludes “. . . the intentional placement of any device in ocean waters or on or in the submerged land beneath such waters, for a purpose other than disposal, when . . . such placement . occurs pursuant to an authorized Federal . . . program.” 33 U.S.C. § 1402(f). This language, together with the legislative history of the Act, leave no doubt but that Congress intended to prohibit purposeful disposal of waste. See 1972 U.S.Code Cong. & Admin.News, pp. 4234 et seq. The report of EPA Administrator William D. Ruckelshaus specifically states: “Special note should also be made of the fact that ‘dumping’ as defined in subsection 3(f) would not include an activity which has as its primary purpose a result other than ‘a disposition of material’ but which involves the incidental depositing of some debris or other material in the relevant waters. For example, material from missiles and debris from gun projectiles and bombs ultimately come to rest in the protected waters. Such activities are not covered by this Act.” Supra, p. 4255-6. (Emphasis supplied). D. Allegations under the Resource Conservation and Recovery Act The allegations of Plaintiffs pursuant to the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq. hereinafter referred to in this Section as the “Act” are equally without substance. A reading of this statute as well as its legislative history establishes beyond any question that Congress’ intended targets were the evils brought about by “solid wastes” and “hazardous wastes” as therein defined. “Solid Waste” is defined as: “. . . [A]ny garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining and agricultural operations, and from community activities. . . . ” (Emphasis supplied). See 42 U.S.C. § 6903(27). With one exception which will be presently discussed, it is obvious that Defendant Navy’s military activities, although causing the incidental depositing of debris are not the discarding of material nor are they the result of an industrial, commercial, mining or agricultural operation. “Hazardous waste” is in turn defined as: “[A ] solid waste, or combination of solid wastes, which because of its quantity, concentration or physical, chemical, or infectious characteristics may— (A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or (B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.” (Emphasis supplied). See 42 U.S.C. § 6903(5). Even assuming that Plaintiffs have otherwise met the substantial burden placed upon them by sub-paragraphs (A) and (B) of this definition, a fact which is far from certain, the scope of this definition in referring to “solid waste”, a term of art under this Act, excludes military hazardous wastes from its coverage. Plaintiffs next rely on the “Regulation for the Control of Solid Waste” promulgated by Plaintiff Environmental Quality Board. Plaintiffs allege that this regulation is applicable to Defendant Navy’s activities by virtue of 42 U.S.C. § 6961, which states: “Each department, agency, and instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any solid