R. BRYAN HARWELL, District Judge.
This case involves Deerfield Plantation Phase II-B Property Owners Association, Inc.'s ("Deerfield") challenge to a determination by the United States Army Corps of Engineers ("Corps") that it has jurisdiction and regulatory authority, under the
Deertrack owns land in Horry County, South Carolina, including an 84.96-acre parcel known as the Old South Golf Course ("Deerfield Tract"). In or around 2005, Deertrack closed the Old South Golf Course and entered into a purchase contract with Bill Clark Homes of Myrtle Beach ("BCH") for the sale of the Deerfield Tract. BCH intended to redevelop the Deerfield Tract as a residential subdivision. In connection with this redevelopment plan, on February 13, 2006, a consultant for BCH submitted a request for a jurisdictional determination ("JD") by the Corps as to whether the Deerfield Tract contained "waters of the United States" subject to jurisdiction under Section 404 of the CWA. See Administrative Record ("A.R.") at 372. On August 3, 2006, the Corps notified BCH that the Deerfield Tract did "not contain any wetland areas or other waters of the United States." Id. at 362. That 2006 JD provided that it would be valid for five (5) years "unless new information warrant[ed] revision . . . before the expiration date." Id.
On April 16, 2009, Deerfield filed the instant suit against the Corps, the United States Environmental Protection Agency ("EPA"),
On March 17, 2010, the Corps issued the superseding JD ("2010 JD") that is at issue in these cross-motions for summary judgment and subject to review in this case.
"Congress passed the CWA in 1972 `to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.'" Precon Dev. Corp. v. U.S. Army Corps of Eng'rs, 633 F.3d 278, 287 (4th Cir.2011) (quoting 33 U.S.C. § 1251). To achieve that objective, the CWA prohibits the "discharge of any pollutant" into navigable waters. 33 U.S.C. § 1311(a); see also id. § 1362(12). Section 404 of the CWA requires a permit for "discharge of dredged or fill material into the navigable waters." Id. § 1344(a). The term "navigable
The Corps and EPA share responsibility for implementing and enforcing the CWA, and both have defined the term "waters of the United States" in substantially equivalent terms. See 33 C.F.R. § 328.3(a) (Corps definition); 40 C.F.R. § 230.3(s) (EPA definition).
33 C.F.R. § 328.3(a).
Wetlands are defined as "areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions." Id. § 328.3(b). "Adjacent" wetlands are ones "bordering, contiguous, or neighboring" other jurisdictional waters, and include "[w]etlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like." Id. § 328.3(c).
The Corps' regulations authorize the Corps, upon request, to provide the agency's view on whether a particular property contains "waters of the United States" within the agency's regulatory jurisdiction under the CWA. See id. §§ 320.1(a)(6), 331.2. The process results in a written "jurisdictional determination" that outlines the geographic extent of wetlands or water-bodies on a site that are within the Corps' regulatory jurisdiction. See id. §§ 320.1(a), 331.2.
In United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985), the United States Supreme Court held that Congress had included a broad definition of "navigable waters" in the CWA, "evidently intend[ing] to . . . exercise its powers under the Commerce Clause to regulate at least some waters that would not be deemed `navigable' under the classical understanding of that term." Id. at 133, 106 S.Ct. 455.
Most recently, the Supreme Court interpreted the term "waters of the United States" in Rapanos v. United States, 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006). Rapanos involved consolidated cases in which the CWA had been applied to "four Michigan wetlands, which lie near ditches or man-made drains that eventually empt[ied] into traditional navigable waters." Id. at 729, 126 S.Ct. 2208 (plurality opinion). The Court was required "to decide whether the term `navigable waters' in the Clean Water Act extend[ed] to wetlands that d[id] not contain and [were] not adjacent to waters that [were] navigable in fact." Id. at 759, 126 S.Ct. 2208 (Kennedy, J., concurring). While all members of the Court reaffirmed that the term "waters of the United States" encompasses "some waters that are not navigable in the traditional sense,"
The four-Justice plurality, as authored by Justice Scalia, began by interpreting "the phrase `the waters of the United States' [to] 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, 126 S.Ct. 2208 (citation omitted) (plurality opinion). The plurality further indicated that these "navigable waters," i.e., streams, oceans, rivers, and lakes, are "continuously present, fixed bodies of water, as opposed to ordinarily dry channels through which water occasionally or intermittently flows." Id. at 733, 126 S.Ct. 2208 (plurality opinion). Moreover, the Court noted that "[e]ven the least substantial of the definition's terms, namely, `streams,' connotes a continuous flow of water in a permanent channel[;] . . . [n]one of these terms encompasses transitory puddles or ephemeral flows of water."
Id. at 742, 126 S.Ct. 2208 (plurality opinion).
Justice Kennedy, in his concurrence, found the plurality's test to be too limiting. See id. at 778, 126 S.Ct. 2208 (noting that "the plurality reads nonexistent requirements into the [CWA]") (Kennedy, J., concurring). Citing SWANCC, Justice Kennedy wrote that the applicable test for determining whether or not a "water or wetland" is "navigable" is the "significant nexus" test. Id. at 759, 126 S.Ct. 2208 (quoting SWANCC, 531 U.S. at 167, 172, 121 S.Ct. 675) (Kennedy, J., concurring). Under that test, in order to be "navigable" under the CWA, "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. (Kennedy, J., concurring). Turning his attention to the wetlands involved in Rapanos, Justice Kennedy concluded that "wetlands possess the requisite nexus, and thus come within the statutory phrase `navigable waters,' if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as `navigable.'" Id. at 780, 126 S.Ct. 2208 (Kennedy, J., concurring). To the contrary, "[w]hen . . . wetlands' effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term `navigable waters.'" Id. (Kennedy, J., concurring). Justice Kennedy further advised that "[w]hen the Corps seeks to regulate wetlands adjacent to navigable-in-fact waters, it may rely on adjacency to establish its jurisdiction. . . . however, the Corps must establish a significant nexus on a case-by-case basis when it seeks to regulate wetlands based on adjacency to nonnavigable tributaries." Id. at 782, 126 S.Ct. 2208 (Kennedy, J., concurring).
Justice Stevens indicated in his dissent that the four dissenting Justices would uphold CWA jurisdiction in all cases in which either the plurality's "relatively permanent" test or Justice Kennedy's "significant nexus" test is met. See id. at 810, 126 S.Ct. 2208 (Stevens J., dissenting). Specifically, Justice Stevens wrote:
Id. (Stevens, J., dissenting).
The Fourth Circuit has not had occasion to identify the controlling rule of law on the meaning of the term "waters of the United States" that emerged from the Rapanos decision.
After the Supreme Court issued its decision in Rapanos, the Corps and EPA prepared the [Docket Entry 58-1] Rapanos Guidance (the "Guidance"),
The Guidance began by instructing that the EPA and Corps would continue to assert jurisdiction over all "traditional navigable waters, which includes all the waters described in 33 C.F.R. §§ 328.3(a)(1), and 40 C.F.R. § 230.3(s)(1)." Id. at 4. Similarly, the Guidance indicated that the Rapanos decision left unchanged the Corps' continued assertion of jurisdiction "over wetlands adjacent to traditional navigable waters, including over adjacent wetlands that do not have a continuous surface connection to traditional navigable waters." Id. at 4-5.
With respect to the plurality opinion, the Guidance provides that "[t]he agencies will assert jurisdiction over non-navigable tributaries of traditional navigable waters that are relatively permanent where the tributaries typically flow year round or have continuous flow at least seasonally," id. at 6, and further that "[t]he agencies will assert jurisdiction over those adjacent wetlands that have a continuous surface connection to such tributaries." Id. For purposes of analyzing those tributaries, the Guidance instructs that "`relatively permanent' waters do not include ephemeral tributaries which flow only in response to precipitation and intermittent streams which do not typically flow year-round[.]" Id. at 7. Rather, those types of non-permanent tributaries are to be evaluated under the "significant nexus" standard. Id.
With respect to Justice Kennedy's "significant nexus" test, the Guidance provides that "[t]he agencies will assert jurisdiction over non-navigable, not relatively permanent tributaries and their adjacent wetlands where such tributaries and wetlands have a significant nexus to a traditional navigable water." Id. at 8. Per the Guidance, the "significant nexus analysis will assess the flow characteristics and functions of the tributary itself and the functions performed by any wetlands adjacent to the tributary to determine if they significantly affect the chemical, physical and
The Corps issued its 2010 JD on March 17, 2010. See Am. Compl. [Docket Entry 43] at 2, 9. The 2010 JD consists of three "approved jurisdictional determination forms," A.R. at 12-34, an eight-page memorandum explaining the Corps' findings, id. at 1-8, and multiple pictures taken by the Corps during its site inspections of the Deerfield Tract, id. at 36-38.
The 2010 JD addressed 84.96 acres
In making its 2010 JD, the Corps first reviewed "infrared, aerial photography from 1994, 1999, and 2006 [which] reveal[ed] that the Deerfield Tract [was] a golf course with associated lakes/ponds." Id. at 3; see also id. at 387, 399-400. The Corps then reviewed its own records, which indicated that "construction associated with the golf course on [the Deerfield Tract] was likely performed prior to regulation under the [CWA]." Id. at 3. The Corps next reviewed the United States Department of Agriculture's Soil Survey for Horry County. Id. The Soil Survey indicated the "potential presence of hydric soils onsite," which could have been "an indicator that wetlands or other jurisdictional waters [were] present on the site." Id. However, due to the age of the survey, which was prepared in 1974, the Corps noted that "this information [was] not conclusive that hydric soils [were] currently present on this tract." Id. The Corps next reviewed the most recent United States Geological Survey for Surfside Beach, prepared in 1984, "which revealed that the tract did not contain any evidence of wetlands or waters." Id. The Surfside Survey did have the words "golf course" handwritten over the Deerfield Tract, which "suggested
To resolve any conflicts, Fennel, the Corps' supervisory biologist, conducted two on-site inspections of the Deerfield Tract, accompanied by Mike Wylie, an EPA wetlands expert,
Id.
In the 2010 JD, the Corps concluded that two non-navigable tributaries of the Atlantic Ocean located on the Deerfield Tract—i.e., the 0.37 acres (920.07 linear feet)—were "waters of the United States." Id. at 4-6. The first jurisdictional tributary
"In addition, Mr. Fennel observed a clearly defined ordinary high water mark present in the area where the tributary contained a clearly defined channel," which is another indicator of "relatively permanent flow." Id. Specifically, Fennel observed the following: "a clear natural line impressed on the bank," an "absence of terrestrial vegetation within the . . . channel," and "the presence of litter and debris being transported downstream." Id. Similarly, the 2010 JD indicated that Fennel observed red-staining along the banks of the tributary, which "is the direct result of
The second tributary
While the Corps determined in the 2010 JD that the above two tributaries were jurisdictional, the Corps concluded that the remaining water bodies on the Deerfield Tract were not "waters of the United States." Id. at 6-8. "The remaining water features on the delineated portion of the Deerfield Tract are a series of ponds that are interconnected by a series of ditches and swales." Id. at 6. The Corps began by noting that it "generally does not consider swales or ditches that are excavated wholly in uplands and that do not carry a relatively permanent flow to be jurisdictional," nor does it "consider small, ornamental waterbodies to be `waters of the United States' if the artificial features are created by excavating wholly from uplands to retain water primarily for aesthetic reasons." Id. at 6-7; see also Guidance at 8-13. Here, the Corps concluded that these "remaining water features" did "not have a significant nexus to a traditional navigable water because of the low volume, duration and frequency of water flow to the jurisdictional relatively permanent tributary." A.R. at 6.
Specifically, as to the ditches and swales, Fennel observed a "prevalence of vegetation," a lack of an ordinary high water mark, and a lack of sinuosity. Id. at 6-7. In addition, Fennel noted that "these ditch and swale features convey[ed] water from ponds and surrounding upland areas during and following storm events and there [was] no evidence of groundwater recharge." Id. at 7. Based on these observations,
With respect to the ponds, the Corps concluded that they were "man-made in uplands" and that there "was no evidence of existent or remnant wetlands or tributaries" on the Deerfield Tract. Id. Based on Fennel's on-site observations, the Corps also concluded that the "artificial ponds were likely constructed for the purpose of retaining water because the culverts that connected the ponds to the swales and ditches were elevated and constructed to maintain a certain water level and would flow only if the pond levels fluctuated above a certain point," and that the ponds retained water "primarily for aesthetic reasons associated with typical golf course design." Id. Thus, the Corps concluded that "these ponds drain to ditches . . . that contain such a low volume, duration and frequency of water flow, [that] these ponds do not have a significant nexus that would warrant departing from the Corps['] policy that such areas generally are not `waters of the United States.'" Id.
"Claims challenging federal agency action under the CWA . . . are subject to judicial review under the [Administrative Procedures Act (APA)]." Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 192 (4th Cir.2009) (citing 5 U.S.C. § 702). Under the APA, "agency action, findings, and conclusions" will be set aside only when they are "found to be. . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); see also Ohio Valley Envtl. Coal., 556 F.3d at 192. "Review under this standard is highly deferential, with a presumption in favor of finding the agency action valid." Ohio Valley Envtl. Coal., 556 F.3d at 192; see also Natural Res. Def. Council, Inc. v. EPA, 16 F.3d 1395, 1400 (4th Cir.1993). "Especially in matters involving not just simple findings of fact but complex predictions based on special expertise, `a reviewing court must generally be at its most deferential.'" Ohio Valley Envtl. Coal., 556 F.3d at 192 (quoting Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983)).
"In determining whether agency action was arbitrary and capricious, the court must consider whether the agency considered the relevant factors and whether a clear error of judgment was made." Id. at 192 (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). "Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency." Citizens to Preserve Overton Park, Inc., 401 U.S. at 416, 91 S.Ct. 814. "Deference is due where the agency has examined the relevant data and provided an explanation of its decision that includes `a rational connection between the facts found and the choice made.'" Ohio Valley Envtl. Coal., 556 F.3d at 192 (quoting Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins., Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (internal quotations and citations omitted)). Moreover, "`[a]gencies are entitled to select their own methodology as long as that methodology is reasonable,' and [the court] must defer to such agency choices." Id. at 201 (quoting Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283, 289 (4th Cir.1999)). Nonetheless, the court will vacate an agency's decision if it
Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007) (quoting Motor Vehicle Mfrs. Ass'n of U.S., Inc., 463 U.S. at 43, 103 S.Ct. 2856).
At first glance, this appears to be an unusual case. Parties generally challenge determinations of the Corps where the Corps has affirmatively asserted regulatory jurisdiction over water bodies owned by those parties. See, e.g., Precon Dev. Corp., 633 F.3d at 281. Here, however, Deerfield brought this action because the Corp is refusing to assert jurisdiction over the majority of the water bodies located on the Deerfield Tract.
All parties have filed cross-motions for summary judgment. Deerfield contends that the Corps' 2010 JD was arbitrary and capricious, asserting three main arguments: the Corps inappropriately focused solely on "flow," the Corps failed to conduct an appropriate "significant nexus" test, and the Corps arbitrarily decided to terminate jurisdiction mid-channel. The Federal Defendants, on the other hand, maintain that the 2010 JD was accurate, well-reasoned, and not arbitrary and capricious. Finally, Deertrack argues that the court lacks jurisdiction to review the Corps' 2010 JD.
The United States Supreme Court has explained that "the Corps must necessarily choose some point at which water ends and land begins." Riverside Bayview Homes, Inc., 474 U.S. at 132, 106 S.Ct. 455. The Court has further noted that this is "no easy task" and "the transition from water to solid ground is not necessarily or even typically an abrupt one." Id. Upon review, for the reasons set out below, the court finds that it has subject-matter jurisdiction to address the merits of this case, and, as to the merits, the court finds that Deerfield has failed to establish that the Corps arbitrarily and capriciously determined the point on the Deerfield Tract "at which water ends and land begins."
Deertrack argues that the 2010 JD issued by the Corps was not a final agency action and that Deerfield cannot show that the Corps failed to perform any nondiscretionary act or duty under the CWA, and thus Deertrack contends the court lacks subject-matter jurisdiction over this matter.
In its Motion for Summary, Deertrack cited Fairbanks North Star Borough v. U.S. Army Corps of Engineers, 543 F.3d 586 (9th Cir.2008), and argued that the
In Fairbanks, the Ninth Circuit concluded that the district court did not have jurisdiction to review the Corps' approved jurisdictional determination that Fairbank's property contained wetlands subject to CWA regulatory jurisdiction. The case sub judice is distinguishable from Fairbanks. In Fairbanks, the Ninth Circuit Court of Appeals held that "the Corps' issuance of an approved jurisdictional determination finding that . . . property contained waters of the United States did not constitute final agency action under the APA for purposes of judicial review." Id. at 591. Specifically, the Ninth Circuit concluded that the Corps' determination that the property in question did contain wetlands subject to CWA regulatory jurisdiction was not final agency action because it did "not impose an obligation, deny a right or fix some legal relationship." Id. at 597. Rather, that court held that the "affirmative finding simply put[] Fairbanks on notice that the Corps believe[d] a permit [would be] necessary if Fairbanks decide[d] to proceed with its project." Id. Here, while the Corps did find 0.37 acres of "waters of the United States" on the Deerfield Tract, the Corps determined the majority of the acreage to be non-jurisdictional. Therefore, the portion of the 2010 JD challenged by Deerfield was not an "affirmative" determination as in Fairbanks, but a "negative" determination. Even the Ninth Circuit in Fairbanks recognized the difference, noting that "[w]hether a Corps finding that a property is not subject to regulatory jurisdiction under the CWA would constitute final agency action is beside the point here. . . ." Id. The undersigned is persuaded that legal consequences do flow from the Corps' 2010 JD ("negative" determination), as any developer of the property could conceivably immediately begin to fill and dredge the eighty-plus acres that the Corps determined to be non-jurisdictional.
Moreover, in National Wildlife Federation v. Hanson, 859 F.2d 313 (4th Cir. 1988), the Fourth Circuit considered an award of attorney's fees to a group of plaintiffs "who challenged the Corps' determination that two tracts of land in North Carolina were not wetlands under. . . the [CWA]." Id. at 315 (emphasis added). In analyzing the attorney's fees award, the Fourth Circuit noted that "[t]he district court's review of the Corps' wetlands determination under APA standards was proper and did not alter the jurisdictional base of the court's judgment." Id. at 316. While admitting at the hearing that Hanson contained language favorable to Deerfield, Deertrack argued that this language should be considered as only dicta. Notwithstanding Deertrack's contention, the court is persuaded that the applicable Fourth Circuit precedent suggests that subject-matter jurisdiction exists over Deerfield's claims.
The plurality in Rapanos held that the "phrase `the waters of the United States' includes 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, 126 S.Ct. 2208 (internal citation omitted) (plurality opinion). Accordingly, the Rapanos Guidance provides that the Corps "will assert jurisdiction over non-navigable tributaries of traditional navigable waters that are relatively permanent where the tributaries typically flow year-round or have continuous flow at least seasonally," as well as over "those adjacent wetlands that have a continuous surface connection to such tributaries." Guidance at 6 (emphasis added). Here, the Corps reasonably interpreted existing case law, regulations, and guidance documents, and permissibly concluded that only two of the water bodies on the Deerfield Tract were jurisdictional under the plurality's test.
The Corps reasonably concluded that the ditches, ponds, and swales on the Deerfield Tract were excavated wholly from and drain only to uplands. See A.R. at 7-8. The Corps reached this conclusion after conducting two on-site inspections and reviewing infrared, aerial photographs, topographic maps, a soil survey, and an inventory of wetlands in Horry County. While the court notes, as did the Corps, that a soil survey prepared in 1974 indicated the possible presence of hydric soils at that time, which is one indicator of wetlands, the Corps acted reasonably in determining that this evidence was "not conclusive" as to the current presence of wetlands on the Deerfield Tract, especially in light of the other evidence. Specifically, these potential wetlands "were depicted as upland, or dry land, on the Surfside Beach Quad and the Surfside Beach NWI." Id. at 3. More importantly, the Corps' supervisory biologist, Fennel, did not find any "relic hydrophytic vegetation" or any "evidence of existent or remnant wetlands or tributaries in the review area" during the two on-site inspections.
Once the Corps made that determination, it acted reasonably in applying its longstanding interpretation of its regulations and concluding that the remaining ditches, swales, and ponds were not "waters of the United States." As to the ponds, the Corps' regulations provide that the agency generally does not assert jurisdiction over "small ornamental bodies of water created by excavating and/or diking dry land to retain water for primarily aesthetic reasons." 51 Fed.Reg. 41,206, 41,217 (Nov. 13, 1986). Here, the Corps reasonably concluded that "the artificial ponds were likely constructed for purpose of retaining water" and "retained water primarily for aesthetic reasons associated with typical golf course design, construction and operation," i.e., man-made water hazards on a golf course. A.R. at 7. Similarly, the Rapanos Guidance provides that
Guidance at 11-12 (citing 51 Fed.Reg. 41,206, 41,217 (Nov. 13, 1986)). Here, as discussed above, the Corps reasonably determined that these swales and ditches were excavated wholly in uplands and were not themselves "waters of the United States." A.R. at 6-7. The court concludes that there was nothing arbitrary and capricious about the Corps' interpretation and
Deerfield, however, argues that the remaining ditches, swales, and ponds meet the plurality's "relatively permanent" test for jurisdiction. Specifically, Deerfield contends that the Corps inappropriately relied solely on "flow" characteristics in making its determination under the plurality's test, arguing that "[r]ate of flow is irrelevant to the plurality's relatively permanent waters test." Deerfield Memo. in Supp. of Summ. J. at 26. Deerfield further contends that the presence of "standing" water in the remaining ditches, swales, and ponds is sufficient to meet the "relatively permanent" test for jurisdiction under the CWA. The court finds Deerfield's arguments are without merit.
While the Rapanos plurality did hold that "relatively permanent, standing or continuing flowing bodies of water" are jurisdictional "waters of the United States," the plurality's analysis thereafter necessarily included "flow" as a factor. Rapanos, 547 U.S. at 732, 126 S.Ct. 2208 (plurality opinion). The plurality noted that "[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. at 733, 126 S.Ct. 2208 (plurality opinion) (emphasis added). The plurality continued, "[n]one of these terms encompasses transitory puddles or ephemeral flows of water," or "ordinarily dry channels through which water occasionally or intermittently flows." Id. (plurality opinion) (emphasis added). Finally, the plurality indicated in a footnote that "relatively continuous flow is a necessary condition for qualification as a `water.'" Id. at 736 n. 7, 126 S.Ct. 2208 (plurality opinion) (emphasis added). Similarly, the Rapanos Guidance indicates that waters are relatively permanent "where the tributaries typically flow year-round or have continuous flow at least seasonally." Guidance at 6 (emphasis added). In addition, the Guidance explains that "`relatively permanent' waters do not include ephemeral tributaries which flow only in response to precipitation and intermittent streams which do not typically flow year-round or have continuous flow at least seasonally."
Here, the Corps' consideration of flow was not unreasonable or inappropriate. As discussed above, the plurality in Rapanos necessarily included "flow" as a factor to be considered in its "relatively permanent" waters test, and therefore it was reasonable for the Corps to analyze the "flow" of the remaining waters on the Deerfield Tract. See Precon Dev. Corp., 633 F.3d at 290 (recognizing that the Corps' "interpretation and application" of the Rapanos tests are entitled deference). Moreover, the court finds that the Corps reasonably concluded that these remaining ditches, swales, and ponds were not "waters of the United States" under the plurality's standard after analyzing their "flow." While the court does note that Deerfield has presented evidence of the presence of "standing" water in these ditches, swales, and ponds, the Corps, based on Fennel's and the EPA wetlands expert's observations during the two on-site inspections, determined that several factors indicated a lack of "flow" in these remaining waters. Specifically, as to the
Deerfield also contends that the Corps arbitrarily and capriciously determined to end jurisdiction at a point within the second "jurisdictional" channel. Upon review, the court finds that this simply is not the case. To the contrary, Fennel and the Corps provided a thorough explanation as to why jurisdiction was not extended to the entire tributary. See generally id. at 5-7. The Corps concluded that the "pronounced difference between the two flow regimes. . . and their lengths, warranted treating them as different reaches because no one flow regime was an accurate characterization of the entire tributary." Id. at 6. With respect to the "non-jurisdictional" portion of the channel, the Corps noted a cessation of "the reach of continuous flow." Id. Additionally, the Corps observed thick and prevalent vegetation throughout the non-jurisdictional channel, a lack of sinuosity, and "no evidence of influence by the influx of groundwater." Id. Finally, and most importantly, Fennel observed that the channel "lacked an ordinary high water mark." Id. The Corps' relevant regulations provide that "[i]n the absence of adjacent wetlands, the jurisdiction extends to the ordinary high water mark." 33 C.F.R. § 328.4(c)(1); see also Rapanos, 547 U.S. at 761, 126 S.Ct. 2208 (Kennedy, J., concurring) ("The Corps views tributaries as within its jurisdiction if they carry a perceptible `ordinary high water mark.'"). Accordingly, the court finds that the Corps reasonably determined the point at which jurisdiction ended, based on a number of factors, and this determination was neither arbitrary nor capricious.
After determining that the remaining ditches, swales, and ponds were not jurisdictional under the "relatively permanent" waters test, the Corps further concluded that these remaining waters did "not have a significant nexus to a traditional navigable water." A.R. at 7. Deerfield contends that the Corps' significant nexus analysis was both arbitrary and capricious.
Under the "significant nexus" test, in order to be "navigable" under the CWA, "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." Rapanos, 547 U.S. at 759, 126 S.Ct. 2208 (Kennedy, J., concurring). The Guidance states that the Corps will assert jurisdiction over tributaries of navigable waters if "the flow characteristics and functions of the tributary itself and
Here, as discussed above, the Corps first identified all of the remaining water features on the Deerfield Tract—i.e., the ditches, swales, and ponds—and found no evidence of any existing or past wetlands. A.R. at 3-4; see also 33 C.F.R. § 328.3(b) (defining "wetlands" as "areas that are inundated or saturated by surface or ground water" and are home to "vegetation typically adapted for life in saturated soil conditions"). The Corps then analyzed the flow characteristics of these ditches and swales, and concluded that they have such a "low volume, duration and frequency of water flow" they lack a significant nexus to a traditional navigable water. A.R. at 7. The Corps determined this lack of "flow," using all the same indicators as discussed above
According to the Rapanos Guidance, in determining whether a significant nexus exists, the Corps will consider "hydrologic factors" and "ecologic factors." Guidance at 8. "Hydrologic factors" include, among other factors, "volume, duration, and frequency of flow, including consideration of certain physical characteristics of the tributary," and "proximity to the traditional navigable water." Id. "Ecologic factors"
Accordingly, it was not arbitrary and capricious for the Corps to conclude that these remaining waters do "not have a significant nexus to a traditional navigable water because of the low volume, duration and frequency of water from these features, and [that they] therefore do[] not constitute `waters of the United States.'" Id.
Under the APA, "agency action, findings, and conclusions" will be set aside only when they are "found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); see also Ohio Valley Envtl. Coal., 556 F.3d at 192. Further, "[r]eview under this standard is highly deferential, with a presumption in favor of finding the agency action valid." Ohio Valley Envtl. Coal., 556 F.3d at 192; see also Natural Res. Def. Council, Inc., 16 F.3d at 1400. For the reasons stated above, the court finds 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. Therefore, the court finds that the Corps' 2010 JD was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Accordingly, it is therefore
"When presented with conflicting evidence, courts must generally defer to the agency evaluation because `an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.'" Ohio Valley Envtl. Coal., 556 F.3d at 201 (quoting Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989)). Similarly, "[a]gencies are entitled to select their own methodology as long as that methodology is reasonable." Id. at 201 (quoting Hughes River Watershed Conservancy, 165 F.3d at 289-90); see also Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1244 (9th Cir.2005) (finding, in the context of a NEPA challenge, that because the Forest Service had provided a "thorough and reasoned explanation" for its position, the court would not "take sides in a battle of the experts" (internal quotations omitted)). Accordingly, the court finds that the Corps reasonably relied on its own two experts/specialists in making its determinations.
Although the Fourth Circuit in Precon did reverse and remand that matter after "find[ing] the Corps' administrative record [was] inadequate to support its conclusion that it [could assert] jurisdiction over Precon's wetlands," the present case is notably distinguishable as the Corps here did not attempt to assert jurisdiction over the remaining water bodies on the Deerfield Tract. Precon Dev. Corp., 633 F.3d at 281. More importantly, the Fourth Circuit in Precon specifically addressed Deerfield's argument that specific measurements of flow are required. The Fourth Circuit stated in Precon that it "d[id] not intend to place an unreasonable burden on the Corps" and additionally "agree[d] that the significant nexus test d[id] not require laboratory tests or any particular quantitative measurements in order to establish significance." Id. at 296-97. Rather, the court indicated that "quantitative or qualitative" evidence could establish "significance." Id. at 296-97. Here, the Corps relied on such "qualitative" evidence—the physical indicators discussed above—in determining that the remaining waters had a low or minimal "flow." Accordingly, the court finds that Deerfield has failed to show that the Corps' significant nexus determination was arbitrary or capricious on this basis.
