Deerfeild Plantation Phase II-B Property Owners Ass'n v. United States Army Corps of Engineers

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1871
DEERFIELD PLANTATION PHASE II-B PROPERTY OWNERS
ASSOCIATION, INCORPORATED,
Plaintiff - Appellant,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, CHARLESTON DISTRICT;
ROBERT L. VAN ANTWERP, Lieutenant General, in his official
capacity as Chief of Engineers, US Army Corps of Engineers;
TREY JORDAN, Lieutenant Colonel, in his official capacity
as District Engineer, US Army Corps of Engineers,
Charleston District; UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY; LISA P. JACKSON, in her official capacity as
Administrator of the US Environmental Protection Agency; A.
STANLEY MEIBURG, in his official capacity as Acting
Regional Administrator, Region IV, US Environmental
Protection Agency; DEERTRACK GOLF, INC.,
Defendants - Appellees.
No. 11-2253
DEERFIELD PLANTATION PHASE II-B PROPERTY OWNERS
ASSOCIATION, INCORPORATED,
Plaintiff – Appellee,
v.
DEERTRACK GOLF, INC.
Defendant – Appellant,
and
UNITED STATES ARMY CORPS OF ENGINEERS, CHARLESTON DISTRICT;
ROBERT L. VAN ANTWERP, in his official capacity as Chief of
Engineers, US Army Corps of Engineers; TREY JORDAN,
Lieutenant Colonel, in his official capacity as District
Engineer, US Army Corps of Engineers, Charleston District;
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; LISA P.
JACKSON, in her official capacity as Administrator of the
US Environmental Protection Agency; A. STANLEY MEIBURG, in
his official capacity as Acting Regional Administrator,
Region IV, US Environmental Protection Agency
Defendants.
Appeals from the United States District Court for the District
of South Carolina, at Florence. R. Bryan Harwell, District
Judge. (4:09-cv-01023-RBH)
Argued: October 25, 2012 Decided: December 26, 2012
Before MOTZ and KEENAN, Circuit Judges, and James K. BREDAR,
United States District Judge for the District of Maryland,
sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Amy Elizabeth Armstrong, SOUTH CAROLINA ENVIRONMENTAL
LAW PROJECT, Pawleys Island, South Carolina, for Deerfield
Plantation Phase II-B Property Owners Association, Incorporated.
Elizabeth Ann Peterson, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Federal Appellees; Mary Duncan Shahid,
NEXSEN PRUET, LLC, Charleston, South Carolina, for Deertrack
Golf Inc. ON BRIEF: Michael G. Corley, SOUTH CAROLINA
ENVIRONMENTAL LAW PROJECT, Pawleys Island, South Carolina, for
Deerfield Plantation Phase II-B Property Owners Association,
Incorporated. Ignacia S. Moreno, Assistant Attorney General,
Aaron P. Avila, Jennifer Scheller Neumann, Adam J. Katz, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Federal
Appellees. Stephen P. Groves, Sr., NEXSEN PRUET, LLC,
Charleston, South Carolina, for Deertrack Golf, Inc.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
In this appeal, we consider whether the United States
Army Corps of Engineers (the Corps) properly determined that it
did not have jurisdiction under the Clean Water Act, 33 U.S.C.
§§ 1251 through 1387 (the Clean Water Act, or the Act), over
certain ponds, ditches, and other waters on a former golf course
located in South Carolina. Deerfield Plantation Phase II-B
Property Owners Association, Inc. (the Homeowners’ Association,
or the Association) filed this action against the Corps, the
Environmental Protection Agency (the EPA), and Deertrack Golf,
Inc. (the Property Owner) (collectively, the defendants),
challenging as arbitrary and capricious the Corps’ determination
that it did not have jurisdiction over such waters. The
district court upheld the Corps’ decision, and awarded the
defendants summary judgment. Upon our review, we affirm the
district court’s judgment.
I.
This case arises from the planned redevelopment of a
parcel of property in Horry County, South Carolina. A now-
defunct golf course, known as the “Old South Golf Course,” was
located on this 152-acre parcel (the Deerfield Tract). In 2005,
the Property Owner entered into a contract to sell the Deerfield
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Tract to Bill Clark Homes, which in turn planned to redevelop
the parcel as a residential subdivision.
The Homeowners’ Association is a nonprofit
organization whose membership is composed of property owners in
Deerfield Plantation, Phase II-B, a residential community
developed alongside the old golf course. Thus, the residences,
roads, and common areas owned by the Homeowners’ Association
directly border or are located close to the Deerfield Tract.
The Homeowners’ Association opposed Bill Clark Homes’ proposed
redevelopment, alleging that the plan will increase flooding on
nearby properties and will result in the destruction of wildlife
habitat, diminishing the Association members’ use of the land
and enjoyment of wildlife.
The Corps is authorized to “issue formal
determinations concerning the applicability of the Clean Water
Act” to “tracts of land.” 33 C.F.R. § 320.1(a)(6). The Corps
may decide whether a tract of land is subject to the agency’s
regulatory jurisdiction under Section 404 of the Clean Water
Act. 33 C.F.R. § 331.2.
Section 404 requires, among other things, a permit for
the “discharge of dredged or fill material into the navigable
waters,” which are defined in turn as “waters of the United
States.” 33 U.S.C. §§ 1344(a), 1362(7). The term, “waters of
the United States,” includes not only traditional navigable
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waters, but also other water features that maintain a sufficient
connection with “waters of the United States” in their own
right, under standards provided by regulations, 33 C.F.R. §
328.3(a), and articulated by the Supreme Court, most recently
in Rapanos v. United States, 547 U.S. 715 (2006).
In February 2006, a consultant for Bill Clark Homes
filed a request for a jurisdictional determination from the
Corps regarding whether any portion of the 152 acres comprising
the Deerfield Tract contained “waters of the United States”
subject to the Corps’ jurisdiction under the Clean Water Act.
In August 2006, the Corps issued a jurisdictional determination
that the Deerfield Tract did not contain any “waters of the
United States” (the initial determination). By its terms, the
Corps’ initial determination was valid for five years from the
date of its issuance.
In March 2010, the Corps issued a revised
jurisdictional determination (the revised determination). The
revised determination considered whether 85 acres of the
Deerfield Tract were subject to the Corps’ jurisdiction, because
the Property Owner had modified the scope of its request
following the Corps’ initial determination.
The Corps consulted a variety of sources before it
reached a conclusion regarding the waters found on the Deerfield
Tract. These sources included: (1) infrared aerial photography;
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(2) agency records; (3) a Horry County soil survey (Soil
Survey); (4) a topographic map for Surfside Beach (Surfside
Beach map); and (5) a wetland inventory for Surfside Beach
(Wetland Inventory). To resolve conflicts in the evidence, the
Corps also conducted two site visits.
In the Soil Survey, the Corps found some evidence of
the “potential presence of hydric soils onsite,” which “could be
an indicator that wetlands or other jurisdictional waters are
present on the site.” However, given the age of the Soil
Survey, this evidence was not considered “conclusive” that
hydric soils presently were located on the Deerfield Tract.
The Corps did not find any evidence of wetlands on the
Deerfield Tract in the more recent Surfside Beach map or in the
Wetland Inventory. Those areas that the Soil Survey had
indicated might qualify as wetlands were shown in those two
sources as “upland, or dry land.” Moreover, on its site visits,
the Corps did not find any “relic hydrophytic vegetation that
would indicate whether this site historically contained
wetlands.” Accordingly, the Corps “could not conclusively
determine whether the [Deerfield Tract] was ever a wetland.”
The Corps ultimately asserted Clean Water Act
jurisdiction over only .37 acres of waters on the Deerfield
Tract. The bases for this conclusion were as follows. The
Corps found that two non-navigable tributaries were “relatively
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permanent waters,” in that they “typically flow year-round or
have continuous flow at least seasonally (e.g., typically 3
months).” 1 The Corps concluded that the two relatively permanent
waters each had a firm, sandy bottom with a clearly-defined
channel that was free of vegetation, which “demonstrates
continuous flow more than seasonally, because vegetation will
not have a chance to establish itself due to the water’s flow.”
The Corps also cited evidence of a clearly-defined ordinary high
water mark, groundwater influx, and the degree of the curvature
(or “sinuosity”) of the tributaries, as indicia that they have a
“relatively permanent flow.”
The Corps noted that the two relatively permanent
waters flow out of the Deerfield Tract through a single point of
exit, and empty into Dogwood Lake. The Corps identified Dogwood
Lake as “an impounded reach of a relatively permanent water,”
and thus, a “water of the United States” that flows into the
Atlantic Ocean.
1
The Corps rendered the revised determination based upon
the standards articulated in the Clean Water Act Jurisdiction
Following the U.S. Supreme Court’s Decision in Rapanos v. United
States & Carabell v. United States (Dec. 2, 2008) (the Rapanos
Guidance)). The Rapanos Guidance was jointly prepared by the
Corps and the EPA, and it “instructs Corps and EPA personnel on
how to make jurisdictional determinations that comply with the
new rules for [Clean Water Act] jurisdiction announced by the
Supreme Court in Rapanos.” Precon Dev. Corp., Inc. v. U.S. Army
Corps of Eng’rs, 633 F.3d 278, 283 (4th Cir. 2011).
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Roughly one mile separates the two relatively
permanent waters on the Deerfield Tract from the Atlantic Ocean.
In light of evidence of “continuous” or “perennial flow” and of
“a surface connection with the Atlantic Ocean,” the Corps found
that the .37 acres of waters of the Deerfield Tract constituted
non-navigable tributaries of traditional navigable waters, which
had a relatively permanent flow of water. Accordingly, the
Corps asserted Clean Water Act jurisdiction over these waters.
The Corps did not assert jurisdiction over the
remaining waters on the Deerfield Tract, describing them as “a
series of ponds that are interconnected by a series of ditches
and swales” (collectively, the Contested Waters). 2 Generally,
the Corps does not consider swales, ditches, or ponds created to
retain water primarily for aesthetic reasons as within its
jurisdiction, if such waters are excavated from uplands and do
not carry a relatively permanent flow to a traditional navigable
water. (citing Rapanos Guidance, at 11-12; Final Rule for
Regulatory Programs of the Corps, 51 Fed. Reg. 41,206, 41,217
(Nov. 13, 1986)). The Corps only asserts jurisdiction over
“non-navigable, not relatively permanent tributaries” when they
have “a significant nexus to traditional navigable water.”
2
A “swale” is a “low tract of land, especially when moist
or marshy.” The American Heritage Dictionary 1811 (3d ed.
1992).
8
According to the Corps, the Contested Waters did not meet this
standard.
In its reasoning relating to the ditches and swales of
the Deerfield Tract, the Corps found that they lacked indicia of
relatively continuous flow, because they had no ordinary high
water mark, no clear channel without vegetation, no significant
channel sinuosity, and no influx of groundwater. The Corps
determined that, instead, the ditches and swales “convey water
from ponds and surrounding upland areas during and following
storm events.”
Next, the Corps considered the ponds on the Deerfield
Tract, and determined that they were “man-made in uplands,” and
that there was no evidence of wetlands or other tributaries on
the Tract other than the .37 acres identified above.
According to the Corps, the ponds were small bodies of water
that were constructed primarily for aesthetic reasons associated
with the design of a golf course. Significantly, the ponds were
connected to the ditches and swales by elevated culverts.
Therefore, the Corps found that the ponds were “constructed to
maintain a certain water level and would flow only if the pond
levels fluctuated above a certain point.”
The Corps concluded that individually and
collectively, the Contested Waters were characterized by low
volume, duration, and frequency of water flow, and did not have
9
a significant nexus with traditional navigable waters of the
United States. Accordingly, the Corps declined to assert Clean
Water Act jurisdiction over the Contested Waters.
In May 2010, the Homeowners’ Association filed an
amended complaint in the district court seeking a declaration
that the Corps’ revised determination was arbitrary and
capricious, and was issued in contravention of both the
Administrative Procedure Act, 5 U.S.C. §§ 701 through 706, and
the Clean Water Act. The Association challenged the Corps’
decision to assert jurisdiction over only the .37 acres of
“relatively permanent waters,” and sought a judgment that all
the Contested Waters on the Deerfield Tract qualified as “waters
of the United States.” The parties filed cross motions for
summary judgment.
II.
The district court began its analysis of this case by
discussing the meaning of the phrase, “waters of the United
States,” as used in the Clean Water Act, 33 U.S.C. § 1362(7),
and in the Corps’ implementing regulations, 33 C.F.R. §
328(a). Deerfield Plantation Phase II-B Property Owners Ass’n,
Inc. v. U.S. Army Corps of Eng’rs, 801 F. Supp. 2d 446, 449-51
(D.S.C. 2011). The district court addressed the two standards
articulated by the Supreme Court in Rapanos regarding whether
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certain water features were “waters of the United States,”
namely, the standard provided by the four-Justice plurality (the
relatively permanent waters standard), and the standard provided
by Justice Kennedy in his concurrence (the significant nexus
standard). Id. at 451-53.
Under the relatively permanent waters standard,
“waters of the United States” include “only those relatively
permanent, standing or continuously flowing bodies of water
forming geographic features that are described in ordinary
parlance as streams . . . oceans, rivers, [and]
lakes.” Rapanos, 547 U.S. at 739 (plurality opinion) (internal
quotation marks omitted). The plurality stated that “[e]ven the
least substantial of the definition’s terms, namely, ‘streams,’
connotes a continuous flow of water in a permanent channel,” and
“[n]one of these terms encompasses transitory puddles or
ephemeral flows of water.” Id. at 733 (plurality opinion). In
fact, the plurality wrote that “relatively continuous flow is
a necessary condition for qualification as a ‘water.’” Id. at
736 n.7 (plurality opinion) (emphasis in original).
By contrast, the significant nexus standard provides
that “a water or wetland must possess a ‘significant nexus’ to
waters that are or were navigable in fact or that could
reasonably be so made.” Id. at 759 (Kennedy, J., concurring).
Justice Kennedy stated that the required nexus for wetlands
11
would be established if “alone or in combination with similarly
situated lands in the region, [they] significantly affect the
chemical, physical, and biological integrity of other covered
waters more readily understood as ‘navigable.’” Id. at 780(Kennedy, J., concurring). However, when the “wetlands’ effects
on water quality are speculative or insubstantial,” such
wetlands “fall outside the zone fairly encompassed by the term
‘navigable waters.’” Id. (Kennedy, J., concurring).
The district court concluded that it did not have to
address which of the Rapanos tests governed, because the parties
agreed that if either test was satisfied, the Contested Waters
qualified as “waters of the United States.” Deerfield, 801 F.
Supp. 2d at 452-53 & n.7. The district court also noted that
the Rapanos Guidance provided that “regulatory jurisdiction
under the [Clean Water Act] exists over a water body if either
the plurality’s or Justice Kennedy’s standard is
satisfied.” Id. at 453.
The district court rejected the Homeowners’
Association’s argument that the Corps relied exclusively on
“flow” characteristics and disregarded the presence of
“standing” water in the ditches, swales, and ponds that had a
connection with the Atlantic Ocean. Deerfield, 801 F. Supp. 2d
at 462. The district court observed that “flow” was a factor
for the Corps’ consideration under the relatively permanent
12
waters standard, because “[e]ven the least substantial of the
definition’s terms [streams, oceans, lakes, and rivers,] namely,
‘streams,’ connotes a continuous flow of water in a permanent
channel.” Id. (quoting Rapanos, 547 U.S. at 733 (plurality
opinion)) (emphasis in Deerfield). Indeed, the plurality
in Rapanos noted that “relatively continuous flow is a necessary
condition for qualification as a ‘water.’” Id.(quoting Rapanos, 547 U.S. at 736 n.7 (plurality opinion))
(emphasis in Deerfield).
The district court found persuasive in the present
case the Corps’ findings that the ditches and swales only
contained flowing water after “storm events,” and that the ponds
were constructed to “maintain a certain water level” and would
flow into the ditches and swales only if the water level
increased beyond a certain point. Id. at 462-63. Given the
evidence that the Contested Waters were characterized by a lack
of flow, the district court held that the Corps reasonably
concluded that the Contested Waters were not “waters of the
United States” under the relatively permanent waters
standard. Id. at 463.
The district court also disagreed with the Homeowners’
Association’s challenge to the Corps’ decision regarding the
location along the second tributary where the Corps determined
that its jurisdiction ended. The court held that the Corps
13
reasonably determined the boundaries of its jurisdiction based
on factors that were supported by the record, including
differences in vegetation, evidence of groundwater influx, and
the presence of an ordinary high water mark. Id. at 463.
Finally, the district court disagreed with the
Homeowners’ Association’s argument that the Corps’ significant
nexus analysis was erroneous, as well as arbitrary and
capricious. After the Corps determined that the Contested
Waters did not satisfy the relatively permanent waters standard,
the Corps further concluded that the significant nexus standard
likewise was not satisfied. The district court held that it was
not arbitrary or capricious for the Corps to determine that,
based upon “low volume, duration and frequency of water flow,”
the Contested Waters’ ability to affect downstream navigable
waters was limited, and did not constitute a significant
nexus. Id. at 464-65. In sum, the district court found that
“the methodology and procedures used by the Corps to arrive at
its decision, as well as its findings and conclusions, were
reasonable and not arbitrary and capricious.” Id. at 465.
Accordingly, the district court awarded summary judgment in
favor of the Corps and the EPA. Id.
The district court denied the Property Owner’s motion
for costs and attorneys’ fees made under 33 U.S.C. §
1365. Deerfield Plantation Phase II-B Property Owners Ass’n,
14
Inc. v. U.S. Army Corps of Eng’rs, No. 4:09-cv-01023, 2011 WL
4943914 (D.S.C. Oct. 17, 2011). The court declined to find that
the Homeowners’ Association’s claims were “frivolous,
unreasonable, or without foundation.” Id. at *2-4
(citing Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 415
(1978)). The court noted that the Association initially was
successful in obtaining the revised determination from the
Corps, and that an environmental expert had provided evidence
supporting the claim that the Contested Waters were “waters of
the United States.”
The Homeowners’ Association appeals the district
court’s award of summary judgment in favor of the defendants.
The Property Owner appeals the district court’s denial of its
request for attorneys’ fees and costs.
III.
We review de novo a district court’s ruling on a
motion for summary judgment. Higgins v. E.I. DuPont de Nemours
& Co., 863 F.2d 1162, 1167 (4th Cir. 1988). Summary judgment is
appropriate only when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). In
conducting our review, we consider the evidence in the light
15
most favorable to the nonmoving party. Pueschel v. Peters, 577
F.3d 558, 563 (4th Cir. 2009).
We will set aside a challenged agency action if it is
“arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 5 U.S.C. § 706(2)(A). In making this
assessment, we consider “whether the agency considered the
relevant factors and whether a clear error in judgment was
made.” Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d
177, 192 (4th Cir. 2009) (citing Citizens to Preserve Overton
Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)). Our review of
agency action under § 706(2)(A) is deferential. Id. at 192.
Thus, “recognizing the Corps’ expertise in administering the
[Clean Water Act], we give deference to its interpretation and
application” of the two standards articulated in Rapanos for
ascertaining “waters of the United States.” See Precon, 633
F.3d at 290.
Initially, we consider the defendants’ contention that
the Homeowners’ Association did not establish the elements of
standing, although the Corps raises this argument for the first
time on appeal. See Smith v. Cnty. of Albemarle, 895 F.2d 953,
954 (4th Cir. 1990). Given the timing of the standing
challenge, we will consider additional evidence submitted by the
Homeowners’ Association on the issue. See Ouachita Watch League
v. Jacobs, 463 F.3d 1163, 1170-71 (11th Cir. 2006) (supplemental
16
declarations permitted when standing is first challenged on
appeal).
We have reviewed the record, and conclude that the
Homeowners’ Association demonstrated that the Association, and
several of its members individually, have standing to bring the
present action. The Association has demonstrated that its
members have a factually-supported concern of flooding and of
injury to their aesthetic and recreational interests as a result
of the proposed redevelopment of the Deerfield Tract. See Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (stating
elements of standing).
With regard to the merits of the Homeowners’
Association’s action, like the district court, we conclude that
the Corps did not err or abuse its discretion in determining
that the Contested Waters were not “waters of the United States”
under either the relatively permanent waters standard or the
significant nexus standard articulated in Rapanos. The
Association’s argument that the Corps “completely failed to
apply the ‘significant nexus’ standard,” is undermined by the
plain language of the Corps’ revised determination. Our review
of the revised determination also leads us to conclude that the
Corps did not improperly emphasize the “flow” of the Contested
Waters as a factor in its analysis. Rather, we think that the
Corps engaged in a careful analysis of numerous permissible
17
factors. After consulting a multitude of sources and conducting
site visits, the Corps reached a well-supported conclusion
locating the boundary between the two jurisdictional tributaries
on the Deerfield Tract, and the Contested Waters over which the
Corps ultimately found that it did not have jurisdiction.
We also hold that the district court did not abuse its
discretion in denying the Property Owner’s motion for attorneys’
fees and costs. See Johnson v. City of Aiken, 278 F.3d 333, 336
(4th Cir. 2002) (attorneys’ fees award reviewed for abuse of
discretion). We credit the reasons given by the district court
in reaching its conclusion. The Association had obtained from
the Corps a revised jurisdictional determination, and had
presented expert evidence tending to show that portions of the
Deerfield Tract contained “waters of the United States.”
Despite the Property Owner’s arguments to the contrary, we
discern no abuse of discretion. Thus, we affirm the district
court’s award of summary judgment in favor of the defendants for
the reasons well stated by the court, and we affirm the court’s
denial of the Property Owner’s request for attorneys’ fees and
costs.
AFFIRMED
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