By Melissa Jo Townsend, Rebecca Andrews
The U.S. District Court for the Eastern District of Louisiana recently reversed and remanded a U.S. Army Corps of Engineers (Corps) federal Clean Water Act (CWA) jurisdictional determination regarding two grass-covered, majority dry fields. The court noted a lack of appropriate evidence supporting the Corps’ determination under two different Supreme Court tests. [Lewis v. United States, ___F.Supp.3d___, Case No. CV 18-1838 (E.D. La. Aug. 18, 2020).]
Factual and Procedural Background
Plaintiff Gary Lewis owns two tracts of land, both of which are grassy, predominantly dry, and were previously used for timber farming. When water is present on the property, it flows from the tracts’ roadside drainage ditches to an unnamed tributary, then to Colyell Creek (an “impaired” water), and then to Colyell Bay (a traditional navigable water). Water from Lewis’ property travels some 10-15 miles before reaching Colyell Bay.
Lewis made plans to develop his land in July 2015 and therefore sought a jurisdictional determination from the Corps to determine whether the property was considered a wetland subject to the CWA. The following summer, the Corps issued its Approved Jurisdictional Determination, concluding that some portions of each of Lewis’ tracts were jurisdictional wetlands, and both tracts in their entireties were therefore subject to the CWA. Lewis challenged the Corps’ decision, arguing in particular that the Corps incorrectly determined the size and location of the property’s adjacent wetlands and improperly concluded that a significant nexus between Lewis’ property and the adjacent wetlands existed. The Corps thereafter reviewed its decision and in November 2017 reached the same conclusion.
Lewis then appealed to the judiciary and filed a motion for summary judgment, explaining the Supreme Court’s Rapanosdecision required a different outcome. The Corps filed a cross-motion for summary judgment, contending that the district court owes the Corps’ decision great deference and that the record establishes a significant nexus between Lewis’ wetlands and the waterway.
In light of the parties’ cross motions, the threshold issue before the District Court became whether factual evidence in the record supported the Corps’ conclusion that portions of Lewis’ property were wetlands subject to the CWA.
The U.S. District Court’s Decision
Under the Administrative Procedure Act, agency actions, findings, and conclusions can be set aside only if the court finds the decision is arbitrary, capricious, or otherwise not in accordance with the law.
Rapanos and the Scalia and Kennedy Analyses for Corp Jurisdiction of Wetlands
In Rapanos v. United States, 547 U.S. 715 (2006), the United States Supreme Court delivered a plurality opinion explaining when a wetland is subject to the CWA. In it, Justice Scalia’s plurality adopted the “adjacency test,” under which only wetlands with a “continuous surface connection” to other navigable water bodies are subject to the CWA. Justice Kennedy filed a concurring opinion advancing the “significant nexus test,” which subjects wetlands to the CWA when there is a “significant nexus between the wetlands in question and [traditional] navigable waters.” Justice Kennedy’s test relies on hydrologic and ecologic factors to determine if a wetland’s connection with other water bodies is significant.
Circuit courts have split on which approach is correct, and the Fifth Circuit has not endorsed any approach.
District Court Uses Both Approaches to Jurisdictional Determination
The court here declined to adopt either approach to wetlands and Corps jurisdiction, and, instead, evaluated the facts under both tests.
First, the court noted that the Corps acknowledged Lewis’ land did not meet Justice Scalia’s adjacency test. There was, therefore, no basis for CWA jurisdiction under this approach.
Second, the court considered Justice Kennedy’s significant nexus test and concluded the nexus between Lewis’ property and other water bodies was not significant. Regarding hydrologic factors, the court emphasized that the Corps observed only evidence of water flow from which it made inferences regarding the property’s actual water flow and its impacts. But evidence of flow, the court explained, is not actual flow. Furthermore, the Corps relied on “field indicators” which likewise can only predict surface flow at some points during any given year. Since the Corps’ analysis regarding the property’s actual water flow relied only on inferences and predictions rather than actual observations, the court concluded the property’s hydrologic factors weighed against CWA jurisdiction.
Considering the property’s ecologic factors, the court again emphasized that the Corps’ report was lacking. Because Lewis’ land lies within a 500-year flood plain, the court explained, a portion of the property’s pollutants will no doubt at some point flow downstream. Even still, the Corps’ report failed to determine whether significant rain or flooding events occur often enough to have a substantial impact on the downstream water bodies. Therefore, since the Corps’ report did not indicate the amount of pollutants actually traveling downstream and whether their collective effects were significant, the court concluded the ecologic factors, too, weighed against CWA jurisdiction.
Summary Judgment
After determining that both the hydrologic and ecologic factors weigh against the Corps’ decision, the court concluded Lewis was entitled to summary judgment as a matter of law and granted Lewis’ motion. In doing so, the court dismissed the Corps’ argument that its budgetary constraints limited its ability to determine with perfection whether a significant nexus existed. The court made clear that, regardless of budgetary or other constraints, Justice Kennedy’s significant nexus cannot be established without demonstrating through the record a wetland’s substantial effects on a traditional navigable waterway.
The court remanded the decision to the Corps for further consideration.
Conclusion and Implications
This case recognizes but does not specifically endorse any approach to Clean Water Act jurisdictional determinations for wetlands within the Fifth Circuit. It does, however, suggest that parties seeking to challenge a Clean Water Act jurisdictional determination in the Fifth Circuit should be prepared, when possible, to argue under each of the plurality’s approaches. This case also evaluates the type of evidence needed to support a jurisdictional determination. The court’s opinion is available here:
