Orchard Hill Bldg. Co. v. U.S. Army Corps of Eng'rs

893 F.3d 1017
CourtCourt of Appeals for the Seventh Circuit
DecidedJune 27, 2018
DocketNo. 17-3403
StatusPublished
Cited by19 cases

This text of 893 F.3d 1017 (Orchard Hill Bldg. Co. v. U.S. Army Corps of Eng'rs) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Orchard Hill Bldg. Co. v. U.S. Army Corps of Eng'rs, 893 F.3d 1017 (7th Cir. 2018).

Opinion

St. Eve, Circuit Judge.

This case concerns just shy of 13 acres of wetlands, which lie in a south-suburban plot of land called the Warmke parcel. Orchard Hill Building Company purchased the Warmke parcel in 1995 with plans for a large-scale residential development. Not wanting to run afoul of the Clean Water Act, Orchard Hill requested a determination from the United States Army Corps of Engineers that the wetlands (or the "Warmke wetlands") were not jurisdictional "waters of the United States." The Corps decided that they were, and Orchard Hill has spent the last 12 years challenging that decision. We find that the Corps has not provided substantial evidence of a significant nexus to navigable-in-fact waters, and therefore vacate and remand with instructions that the Corps reconsider its determination.

I. Background

A braid of regulatory, judicial, and administrative events led to the Corps' final *1020claim of jurisdiction over the Warmke wetlands. We start at the beginning.

Congress enacted the Clean Water Act in 1972 "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). One of the Act's primary means to that end is its general prohibition on polluting "navigable waters," which it defines as "waters of the United States." Id. §§ 1311(a), 1362(7), (12). The Act imposes significant criminal and civil penalties for such pollution, id. §§ 1319(c), (d), and obtaining a permit to build on or near such waters can be a lengthy and costly process. Yet the Act does not define what constitutes "waters of the United States." See, e.g. , United States v. Krilich , 209 F.3d 968, 970 (7th Cir. 2000).

That job falls to the Corps of Engineers and the Environmental Protection Agency-and it has proven "a contentious and difficult task." Nat'l Ass'n of Mfrs. v. Dep't of Def. , --- U.S. ----, 138 S.Ct. 617, 624, 199 L.Ed.2d 501 (2018) ; see also 33 C.F.R. § 328.3 (the Corps' definition of waters of the United States); 40 C.F.R. § 122.2 (the EPA's definition of waters of the United States). To take a recent example, the agencies' attempt in 2015 to redefine the statutory phrase resulted in a new administration's swift overhaul and a slew of litigation. See generally Nat'l Ass'n of Mfrs. , 138 S.Ct. at 625-27 ; Executive Order 13778 : Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the "Waters of the United States" Rule, 82 Fed. Reg. 12,497 (Feb. 28, 2017) ; Definition of "Waters of the United States"-Addition of an Applicability Date to 2015 Clean Water Rule, 83 Fed. Reg. 5,200 (Feb. 6, 2018) ; James Conrad, Wetlands Jurisdiction , ENV. SCI. DESKBOOK § 9:1 (2018). This case, however, concerns the Corps' definition of waters of the United States as it existed before 2015. See Schaefer v. Walker Bros. Enters. , 829 F.3d 551, 558 (7th Cir. 2016).

The Corps defined waters of the United States broadly to include waters "subject to the ebb and flow of the tide," "rivers" that could be used for interstate recreation or commerce, "tributaries" of such waters, and-most importantly here-"wetlands adjacent to" other waters of the United States, including tributaries. 33 C.F.R. §§ 328.3(a)(1)-(7) (1994).1 There was (and is) an exemption, though, for "prior converted cropland." Id. § 328.3(8). The Corps considers "prior converted cropland" to mean wetlands "manipulated ... and cropped" before 1985 (when Congress enacted the "Swamp-buster" program, which denies benefits to farmers who use wetlands for farming), but not abandoned of farming use for five or more years.2 See Proposed Rule for the Clean Water Act Regulator Programs of the Army Corps of Engineers and the Environmental Protection Agency (Proposed Rule), 57 Fed. Reg. 26,894, 26,897-26,900 (June 16, 1992) ; Clean Water Act Regulatory Programs (Final Rule), 58 Fed. Reg. 45,008, 45,031-45,034 (Aug. 25, 1993).

Despite, or perhaps because of, those definitions, "[i]t is often difficult to determine whether a particular piece of property contains waters of the United States."

*1021U.S. Army Corps of Eng'rs v. Hawkes Co. , --- U.S. ----, 136 S.Ct. 1807, 1812, 195 L.Ed.2d 77 (2016). But concerned landowners need not risk fines or endure the permit-application process before deciding whether to build on or alter their property. They can instead seek a "jurisdictional determination" from the Corps as to whether their property contains waters of the United States. 33 C.F.R. §§ 320.1(a)(6), 325.9, 331.2.

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