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Fifth Circuit Reverses and Remands District Court’s Summary Judgment on Whether Land Constituted Waters of the United States

The U.S. Court of Appeals for the Firth Circuit recently reversed and remanded the decision out of the U.S. District Court for the Southern District of Texas regarding whether parcels of land were considered “waters of the United States” under the federal Clean Water Act. The Department of Justice (DOJ) brought suit against multiple defendants seeking to enforce Clean Water Act related to alleged violations occurring while developing parcels of land north of Houston. The District Court granted judgment in favor of the defendants. On appeal, the Circuit Court held that the District Court’s decision insufficiently articulated its reasoning and the basis on which it evaluated the facts. Because of this, the Circuit Court was unable to perform its appellate review function and sent the case back to the District Court for clarification of its ruling. [U.S. v. Lipar, et al., ___F.3d___, Case No. 15-20625 (5th Cir. Nov. 7, 2016). ]

This case illustrates the ongoing confusion that remains after Rapanos surrounding the question of what exactly is a wetland for the purposes of the Clean Water Act. While the District Court clearly did not look favorably upon the government’s claim and apparently thought there was not a Clean Water Act violation, the Fifth Circuit rejected the District Court’s conclusion and found that defining “waters of the United States” as requiring a deep appreciation of the total facts and a more nuanced legal analysis. It is likely that this case will be back before the Fifth Circuit for further review in short order, maybe then, there will be more definition on an important issue. The court’s decision is accessible online at:

(Danielle Sakai, Craig Hayes)