Deerfield Plantation Phase II- v. United States Army Corp
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:09-cv-01023-RBH Copies to all parties and the district court/agency. [999009898].. [11-1871, 11-2253]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1871
DEERFIELD
PLANTATION
PHASE
ASSOCIATION, INCORPORATED,
II-B
PROPERTY
OWNERS
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
ASSOCIATION, INCORPORATED,
II-B
Plaintiff – Appellee,
v.
DEERTRACK GOLF, INC.
Defendant – Appellant,
and
PROPERTY
OWNERS
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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Affirmed by unpublished per curiam opinion.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.
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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
district
did
not
court
have
upheld
jurisdiction
the
Corps’
defendants summary judgment.
over
such
decision,
waters.
and
The
awarded
the
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
developed alongside the old golf course.
residential
community
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.”
the
33 U.S.C. §§ 1344(a), 1362(7).
United
States,”
includes
4
not
only
The term, “waters of
traditional
navigable
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waters, but also other water features that maintain a sufficient
connection
right,
with
under
“waters
of
standards
the
United
provided
by
States”
in
regulations,
their
33
own
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
the
determination
considered
whether
85
acres
of
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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agency
Survey);
Beach
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records;
(4)
map);
a
(3)
a
topographic
and
(5)
(Wetland Inventory).
a
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Horry
map
County
wetland
for
soil
Surfside
inventory
survey
Beach
for
(Soil
(Surfside
Surfside
Beach
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
Survey,
this
site.”
However,
evidence
was
given
not
the
the
Soil
“conclusive”
considered
age
of
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.
indicated
might
Those
qualify
as
areas
that
wetlands
sources as “upland, or dry land.”
the
were
Soil
shown
Survey
had
those
two
in
Moreover, on its site visits,
the Corps did not find any “relic hydrophytic vegetation that
would
indicate
wetlands.”
whether
Accordingly,
this
the
site
Corps
historically
“could
not
contained
conclusively
determine whether the [Deerfield Tract] was ever a wetland.”
The
jurisdiction
Tract.
Corps
over
only
ultimately
.37
acres
asserted
of
waters
Clean
on
Water
the
Act
Deerfield
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
months).” 1
waters
channel
flow
at
least
seasonally
(e.g.,
typically
3
The Corps concluded that the two relatively permanent
each
had
that
a
was
firm,
sandy
free
of
bottom
with
vegetation,
a
which
clearly-defined
“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
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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
2
traditional
navigable
water.”
A “swale” is a “low tract of land, especially when moist
or marshy.”
The American Heritage Dictionary 1811 (3d ed.
1992).
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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.
connected
to
the
ditches
and
Significantly, the ponds were
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
collectively,
Corps
the
concluded
Contested
Waters
that
were
individually
characterized
and
by
low
volume, duration, and frequency of water flow, and did not have
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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’
capricious,
and
revised
was
determination
issued
in
was
contravention
arbitrary
of
both
and
the
Administrative Procedure Act, 5 U.S.C. §§ 701 through 706, and
the
Clean
decision
Water
to
Act.
assert
The
Association
jurisdiction
over
challenged
only
the
the
.37
Corps’
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
328(a).
the
Corps’
implementing
regulations,
33
C.F.R.
§
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
Filed: 12/26/2012
water
features
were
Pg: 11 of 18
“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,
forming
geographic
parlance
lakes.”
standing
as
or
continuously
features
streams
that
.
.
flowing
are
.
bodies
described
oceans,
of
in
water
ordinary
rivers,
[and]
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
ephemeral flows of water.”
transitory
puddles
or
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
reasonably be so made.”
Justice
Kennedy
stated
navigable
in
fact
or
that
could
Id. at 759 (Kennedy, J., concurring).
that
the
11
required
nexus
for
wetlands
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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
(Kennedy, J., concurring).
on
water
quality
are
as
‘navigable.’”
Id.
at
780
However, when the “wetlands’ effects
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
Deerfield, 801 F.
qualified as “waters of the United States.”
Supp. 2d at 452-53 & n.7.
the
Rapanos
Guidance
The district court also noted that
provided
that
“regulatory
jurisdiction
under the [Clean Water Act] exists over a water body if either
the
plurality’s
satisfied.”
“flow”
Justice
Kennedy’s
standard
is
Id. at 453.
The
Association’s
or
district
argument
characteristics
court
that
the
and
rejected
Corps
the
relied
disregarded
the
Homeowners’
exclusively
on
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
Corps’
the
consideration
12
under
the
relatively
permanent
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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.
opinion))
(quoting
(emphasis
in
Rapanos,
547
U.S.
733
(plurality
Indeed,
Deerfield).
at
the
plurality
in Rapanos noted that “relatively continuous flow is a necessary
condition
for
qualification
(quoting
Rapanos,
547
U.S.
at
as
a
736
‘water.’”
n.7
Id.
(plurality
opinion))
(emphasis in Deerfield).
The
case
the
district
Corps’
court
findings
found
that
the
persuasive
ditches
in
and
the
present
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
Id. at 462-63.
increased beyond a certain point.
level
Given the
evidence that the Contested Waters were characterized by a lack
of
flow,
concluded
United
standard.
the
district
that
the
States”
court
Contested
under
held
Waters
that
the
the
were
relatively
Corps
not
reasonably
“waters
permanent
of
the
waters
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.
13
The court held that the Corps
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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
Id. at 463.
the presence of an ordinary high water mark.
Finally,
the
district
court
disagreed
with
the
Homeowners’ Association’s argument that the Corps’ significant
nexus
analysis
capricious.
was
After
erroneous,
the
Corps
as
well
determined
as
that
arbitrary
the
and
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’
waters
was
limited,
nexus.
Id. at 464-65.
ability
and
to
did
affect
not
downstream
constitute
a
navigable
significant
In sum, the district court found that
“the methodology and procedures used by the Corps to arrive at
its
decision,
reasonable
as
and
Accordingly,
well
not
the
as
its
arbitrary
district
findings
and
court
favor of the Corps and the EPA.
and
conclusions,
capricious.”
awarded
Id.
summary
at
were
465.
judgment
in
Id.
The district court denied the Property Owner’s motion
for
1365.
costs
and
attorneys’
fees
made
under
33
U.S.C.
§
Deerfield Plantation Phase II-B Property Owners Ass’n,
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Inc. v. U.S. Army Corps of Eng’rs, No. 4:09-cv-01023, 2011 WL
4943914 (D.S.C. Oct. 17, 2011).
the
Homeowners’
unreasonable,
or
The court declined to find that
Association’s
without
claims
were
“frivolous,
Id.
foundation.”
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
motion for summary judgment.
a
district
court’s
ruling
on
a
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
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Pueschel v. Peters, 577
most favorable to the nonmoving party.
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).
assessment,
“whether
relevant
made.”
we
factors
consider
and
whether
a
the
clear
In making this
agency
error
considered
in
judgment
the
was
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)).
agency action under § 706(2)(A) is deferential.
Thus,
“recognizing
the
Corps’
expertise
in
Our review of
Id. at 192.
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
1990).
(4th
Cir.
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
Appeal: 11-1871
Doc: 64
declarations
Filed: 12/26/2012
permitted
when
Pg: 17 of 18
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
Association’s
standard
argument
that
articulated
the
Corps
in
Rapanos.
“completely
failed
The
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.
Corps
engaged
in
a
careful
analysis
17
Rather, we think that the
of
numerous
permissible
Appeal: 11-1871
Doc: 64
factors.
site
Filed: 12/26/2012
Pg: 18 of 18
After consulting a multitude of sources and conducting
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
Corps
a
revised
The Association had obtained from
jurisdictional
determination,
and
had
presented expert evidence tending to show that portions of the
Deerfield
Despite
Tract
the
contained
Property
“waters
Owner’s
of
arguments
discern no abuse of discretion.
the
to
United
the
States.”
contrary,
we
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
18
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