Precon Development Corporation, Inc. v. United States Army Corps of Engineers
Filing
108
OPINION AND FINAL ORDER: Having fully considered and reviewed the Administrative Record, the pleadings, the Report and Recommendation, and the objections and responses thereto de novo, together with the Fourth Circuit's mandate on remand, the C ourt ADOPTS the 100 Magistrate Judge's Report and Recommendation, and hereby GRANTS 91 Defendant United States Army Corps of Engineers' ("Corps") Motion for Summary Judgment and DENIES 77 Plaintiff Precon Development Corpora tion Inc.'s ("Precon") Motion for Summary Judgment. (See Order and Footnotes for Specifics) Entered and filed 11/18/13. (Signed by Chief District Judge Rebecca Beach Smith on 11/18/13). Copies provided as directed on 11/19/13.(ecav, )
UNITED
STATES DISTRICT
FILED
COURT
EASTERN DISTRICT OF VIRGINIA
Norfolk
Division
NOV 1 8 2013
PRECON DEVELOPMENT CORPORATION,
CLERK, US DISTRICT COURT
INC.,
NORFOLK, VA
Plaintiff,
CIVIL NO.
v.
2:08cv447
UNITED STATES ARMY CORPS OF ENGINEERS,
Defendant.
OPINION AND
This
summary
matter
comes
judgment
before
filed
("Precon")
United
Army
April 22, 2013.
Magistrate
The
Judge
pursuant
to
the
Federal
Rule
of
heard
oral
Civil
argument
Magistrate Judge's
2013,
of
of
the
Report
Engineers
referred
Miller
by
28
Procedure
on
cross
U.S.C.
on
of
Development
and
Defendant
United
May
on
States
5,
2013,
§ 636(b)(1)(B)
The
Magistrate
May 23, 2013,
Recommendation
for
("Corps")
to
Order
72(b).
motions
and
motions
Precon
were
provisions
on
March 28,
Corps
E.
court
Plaintiff
on
motions
Tommy
the
by
Corporation Inc.
States
FINAL ORDER
("R&R")
and
Judge
and
was
the
filed
on July 25, 2013.
The Magistrate Judge recommended granting the Corps' Motion
for Summary Judgment and denying and dismissing Precon's Motion
for
Summary
advised
of
Judgment.
their
right
By
to
copy
file
of
the
written
R&R,
the
objections
parties
were
thereto.
On
August 12,
2013,
Precon filed objections to the R&R,
the Corps responded on August 29,
Part III, the court,
2013.
to which
As discussed infra in
having examined the objections and response
to the objections to the R&R,
with respect thereto,
and having made de novo findings
does hereby GRANT the Corps'
Motion for
Summary Judgment and DENY Precon's Motion for Summary Judgment.1
I.
The Fourth Circuit's Remand for Reconsideration
Without
belaboring
the
procedural
background as recounted in the R&R,
history
and
factual
this matter is before the
court on remand from the United States Court of Appeals for
the
Fourth
its
Circuit
for
"the
Corps'
reconsideration
of
significant nexus determination." Precon Development Corp., Inc.
v.
U.S.
2011)
Army
("Precon").
although
the
"similarly
acres
the
Corps
of
situated"
wetlands
the
In
Corps
administrative
assess
of
Corps'
Engineers,
Precon,
the
properly
for
F.3d
Fourth
aggregated,
jurisdictional
adjacent
record
633
to
Precon's
contained
conclusion"
that
278,
297
Circuit
and
Cir.
that,
to
be
purposes,
acres
"insufficient
a
found
found
analysis
4.8
(4th
of
443
wetlands,
information
significant
nexus
to
exists
1 In its brief,
Precon requests a hearing on its objections to
the
full
R&R.
After
examination
of
the
briefs
the court has determined that a hearing is
facts and legal arguments are adequately
and
the
record,
unnecessary, as
presented, and
decisional process would not be aided significantly by
argument.
See Fed. R. Civ. P. 78(b); Local Civ. R. 7(J).
2
the
the
oral
between the wetlands and a navigable body of water.
633 F.3d at 290,
293.
The Fourth Circuit
the
record
See Precon,
the
provided guidance
Corps
should
create
significant nexus determination,
as to the nature of
in
reconsidering
the
which it stated is a "flexible
ecological inquiry into the relationship between the wetlands at
issue
and
water."
715,
[the
Northwest
Id. at 294
770-80
River,]
{citing Rapanos
(2006)).
First,
the
the
v.
traditional
navigable
United States,
inquiry
"does
547 U.S.
not
require
laboratory tests or any particular quantitative measurements in
order
to
establish
Qualitative
significance."
evidence,
such
as
Precon,
expert
633
testimony,
F.3d
may
at
294.
support
a
significant nexus determination. Id. Second, the Fourth Circuit,
discussing Sixth and Ninth Circuit Courts of Appeals decisions,
provided
examples
qualitative
relevant
evidence
at
wetlands
of
the
the
germane
(1)
evidence:
evidence
and
their
condition
of
types
of
the
adjacent
the
of
quantitative
functions
navigable
of
the
and
tributaries;
relevant
or
(2)
water.
Id.
296.
Specifically,
the
of
the
record did not
Northwest
Saint
River;
Brides
appellate
court
adequately address
(2)
the
actual
Ditch
and
the
expressed
(1)
flow rates
2,500-foot
concern
that
the condition of the
of the tributaries—
Ditch;
and
(3)
the
significance of that flow. Id. at 294-95. In explaining that the
burden placed upon the Corps is not an "unreasonable" one,
Fourth Circuit requested,
the
in accordance with Rapanos, that "the
Corps pay particular attention to documenting why such wetlands
significantly, rather than insubstantially, affect the integrity
of navigable waters." Precon, 633 F.3d at 297.
II.
The
findings
Standard of Review of the Corps'
Fourth
are
capricious"
U.S.C.
§
Circuit
entitled
standard
706(2),
Determination
articulated
that
the
Corps'
deference
under
the
"arbitrary
to
of
the
Precon,
Administrative
633
F.3d
at
296;
factual
Procedure
and
the
Act,
has
the
power
Labor
v.
N.C.
2004)
(citing
to
"to the extent
persuade."
Growers
Id.
Ass'n,
Skidmore
v.
at
377
291
F.3d
Swift,
323
that
U.S.
exists
the interpretation
(quoting U.S.
345,
5
agency's
"legal determination" as to whether a significant nexus
is entitled to deference
and
353-54
134,
140
Dep't
(4th
of
Cir.
(1944));
Precon, 633 F.3d at 296.2
2 The
Corps
argues
in its
Motion
for
Summary
Judgment
that
because a significant nexus determination involves application
of the agency's regulatory definition of "waters of the United
States," which is a mixed question of fact and law, and requires
special technical agency expertise, the reasoning of the agency
and
its
ultimate
determination
should
be
reviewed
under
a
deferential "arbitrary and capricious" standard. Mem. Supp. Mot.
Summ. J. at 13; Reply in Supp. Mot.
Summ. J. at 3 (citing
Deerfield Plantation Phase II-B Prop.
Owner's Assoc,
v. U.S.
Army Corps of Enq'rs, 501 F. App'x 268, 274 (4th Cir. 2012) ("We
will set aside a challenged agency action if it is 'arbitrary,
4
III. Analysis of the Report and Recommendation
and Precon's Objections Thereto
Simply put,
the question
before
this court on remand is:
Does the administrative record support the
Corps'
determination
that the relevant 448 acres of wetlands have a significant nexus
to
the
record
Northwest
River?
does
support
so
jurisdictional
response
to
The
the
finding
Precon's
answer,
and
and
The
Corps'
supporting
experts'
conclusively
put,
nexus.
reports,
appeal decision explore each of
Circuit
simply
areas
determine
that
that
the
its
administrative
raised by the
a
the
post-remand
documentation,
and
the
is
Fourth
significant
nexus
exists.
Precon's
objections
reargue
its
Judgment
and Reply
the
flow
the
Northwest
of
the
function
position
relevant
the
and the Northwest
as
Brief,
River
of
to
the
findings
stated
with respect
(objections
1,
tributaries
wetlands
River
in
in
2,
its
to
3,
in
the
(1)
4,
(objections 8,
10,
largely
for
Motion
Summary
the condition of
6,
(objections
relation
R&R
to
11,
7,
19,
9);
(2)
the
20);
and
(3)
these
13,
tributaries
14,
16,
17,
capricious,
an
abuse
of
discretion,
or
otherwise
not
in
accordance with the law.'
5 U.S.C. § 706 (2) (A) .") ) . Although
discussed at length in the first Report and Recommendation, the
court does not address this argument due to the Fourth Circuit's
clear pronouncement of the appropriate standard of review in
Precon, 633 F.3d at 291. See R&R, Aug. 19, 2009 (ECF No. 54).
18) . The court will address each of these areas of objection in
turn.
A.
The Condition of the Northwest River
The Northwest
River
is
an
dissolved oxygen ("DO") levels.
438
(citing
("DEQ")
the
Final
Integrated
suggestion
this
claim
Obj. at 9-12.
phosphorous
DEQ
is
but
that
DO
not
any
nitrogen
and
from
excessive
unsupported
by
the
concern,
as
are
and/or
nitrogen,
evidence.
maximum
daily
for
the
play
Id.
the
at
nitrogen.
Precon
in
evidenced by the
Id.
at
wetlands
nitrogen
chemical
load
or
explained,
rather
the
than
("TMDL")
12.
and
Precon
the
cycling
biological
fact
for
thus
similarly
does
not
quality of
the
9.
This chain of logic collapses under scrutiny.
phosphorous
Assessment
Precon strenuously objects to any
of
role
impact
Northwest River.
Corps
low
Quality
conditions
of
total
a
wetlands
significantly
Quality
levels
suffers
false
a nutrient
developed
situated
river
Low
high
447.
to
Precon argues that the record solely supports that
is
phosphorous,
concludes
the
to
due
Environmental
Water
3.3a-59).
AR at 438,
that
of
305(b)/303(d)
at
body
See Administrative Record ("AR")
Department
generally,
phosphorous.
that
2010
Report
attributable,
arguing
Virginia
impaired water
fact
that
nitrogen,
DEQ
as
First,
developed
noted
in
the
a
as the
TMDL
record,
for
is
because phosphorous is less soluble than nitrogen and attaches
to sediment more
readily.
See Resp. to Obj.
at 8; AR at
328.
Such is the norm in a water body with impaired DO segments.
Excess nutrient
inputs
cause
eutrophication,
to the low DO levels that make the
which
Precon does not contest the basic
that
phosphorous
both
contribute
remand,
to
low
stated
adjacent
DO
that
and
"we
tributaries
nitrogen
levels.
trap
The
know
are
Fourth
that
sediment
contributes
Northwest River an
water body.
the
and
Id.
impaired
scientific fact
nutrients
Circuit,
prior
wetlands
nitrogen."
which
and
to
their
Precon,
633
F.3d at 295.3 Thus, the Corps' factual finding that the wetlands
prevent additional
nutrients from reaching
the Northwest
River
is not arbitrary and capricious, and Precon's devotion of almost
half of its objections to a lack of proof that the river suffers
from
high
Circuit
nitrogen
did
levels of
as
nitrogen,
dispositive
Moreover,
query
as
the
levels
to
it
to
in
is
perplexing.
whether
no
whether
way
a
the
river
While
suffers
indicated that
significant
the
from
this
nexus
Fourth
high
issue is
exists.
Id.
record abundantly supports that both nitrogen and
phosphorous are important to downstream water quality. See e.g.,
AR at 5, 8, 438,
3 Indeed,
the
447.
record
is
rich
Circuit's statement that wetlands
See, e.g., AR at 12-14, 447.
with
act
support
as
a
for
sink
the
for
Fourth
nitrogen.
Second,
on remand.
Precon's
objections
misunderstand
the
Corps'
task
It is not necessary for the Corps to show that there
are high nitrogen levels in the Northwest River and its relevant
tributaries.
See
significant
nexus
particular
Precon,
633
standard
quantitative
F.3d at
"does
294
measurements
in
the
.
not
(emphasizing that
any
.
.
order
require
to
establish
significance") . A water body need not even be impaired in order
to
identify
significant
deterioration
purpose
chemical,
waters."
concedes,
its
own
of
of
the
the
33
river.
Clean
physical,
U.S.C.
benefits
Water
and
§
wetlands
This,
Act
"to
biological
1251
of
serve
course,
and
integrity
of
added).
preventing
effectuates
restore
(emphasis
in
maintain
the
Here,
the
the
Nation's
as
Precon
the Corps has considerable evidence from both DEQ and
experts
that
impaired body of water,
the
Northwest
River
is,
in
fact,
an
suffering from low DO levels.
Thus,
the
Fourth Circuit's mandate to the Corps to consider "the condition
of
the relevant navigable water," as exhibited in the exemplary
Sixth and Ninth Circuit cases,4 is satisfied. Precon, 633 F.3d at
296.
4 Precon attacks the Magistrate Judge's discussion of these two
cases, arguing that the qualitative evidence in United States v.
Cundiff,
555 F.3d 200
(6th Cir. 2009),
and the quantitative
evidence in Northern California River Water v. Healdsburg, 4 96
F.3d 993 (9th Cir. 2007), is lacking in the Corps' record. See
Obj. at 15-16. Precon is correct that the evidence here does not
precisely mirror that in Cundiff and River Watch, nor would one
8
B.
Precon
The Flow of the Tributaries
characterizes
the
Magistrate
Judge's
evaluation
of
the significant nexus determination in relation to the evidence
of flow in the Saint Brides Ditch as "meaningless." Obj.
at 19.
Cutting through the rhetoric, the objection appears to be that
because
the
Corps'
stream flow gauge data,
City of Chesapeake Public Works Department,
as
provided by
the
is hypothetical flow
rate data during various storm events, rather than "actual" flow
rates,
it is meaningless.
It is not.
It is entirely appropriate
and rational for the Corps'
experts to evaluate the
information
it
and
conclusions
has
regarding
therefrom.
As the
flows
Corps
on the Northwest River;
draw
scientific
acknowledges,
thus,
there are
refined
reach or
Summ.
J. at
calculation
the
of
navigable
19, n.14.
the
flow gauges
"direct comparison of the flows in
the river to those in Saint Brides Ditch is
Supp. Mot.
no
In the absence of a perfectly
flow
water,
not possible." Mem.
rates
the
Corps
in
either
the
relevant
appropriately
analyzed
expect it to. Not only were those enforcement cases, in which
the addition of pollutants to the water body was more readily
ascertainable,
but
such
evidence
significant
nexus
determination.
reflects that the Corps amassed
is
not
necessary
Moreover,
the type
the
of
for
a
record here
relevant and
determinable comparative information to which the Fourth Circuit
nodded
in
its
discussion
decisions.
See Precon,
stated in Rapanos, the
of
the
Sixth
and
Ninth
Circuit
633 F.3d at 296. As Justice Kennedy
significant nexus determination must be
made on a "case by case basis," given the specific wetlands and
water body at issue. 547 U.S. at 718.
9
the
(uncontested)
data
points
it
has
and
incorporated
information into its significant nexus determination.
(addressing Precon's expert's calculations),
to
Obj.
at
16
("There
is
no
evidence
432-34,
to
this
AR at 8-9
440; Resp.
support
Precon's
assertion or to otherwise suggest that the engineering estimates
performed by the City's expert staff were unreliable.").
The
Fourth
Circuit
explicitly
stated
that
it
was
placing an "unreasonable burden" on the Corps,
Precon,
at
analysis
296,
and
the
hypothetical
flow
Corps'
reasoning,
323 U.S.
533
218,
U.S.
merit
on
at
234,
140;
as
the
it "has the power to persuade."
("[A]n
whatever
agency's
its
form,
interpretation
given
the
to the agency.")(quoting Skidmore,
323 U.S.
may
'specialized
experience and broader investigations and information'
Precon
of
see also United States v. Mead Corp.,
(2001)
some deference
C.
633 F.3d
rates and its import to the Northwest River,
warrants Skidmore deference,
Skidmore,
based
not
available
at 139).
The Functions of the Wetlands
lobs
a
series
of
critiques
of
the
Corps'
determination that the 448 acres of wetlands perform significant
ecological
alleging
functions
that
qualitative
while
in
its
evidence[,]
expressed their opinions
relation
own
.
to
experts
.
.
the
"provided
the
Corps'
Northwest
River,
quantitative
experts
and
simply
that a significant nexus exists." Obj.
10
at 12-13 (emphasis in original). This claim is meritless. Precon
proceeds in Objections 11 and 13 to summarize,
report
of
its
Environmental
consultant,
Inc.
The
Chester
Corps
yet again,
Cahoon,
properly
III,
considered
of
and
the
Bay
indeed
engaged in a lengthy discussion of the scientific validity of
Dr.
Cahoon's
See
AR
statements
at
and the
3-21
conclusions
(analyzing
misinterpretations"
in
limited
underpinnings
the
statistical
inappropriateness
analysis,
Dr.
of
his
he
draws
therefrom.
"inconsistencies
Cahoon's
report,
supporting
reliance
including
his
upon
and
the
conclusions,
linear
regression
and evidentiary support in the record which undercut
various claims).
Precon fundamentally misinterprets the role the court plays
at
this
robust,
juncture
and
in
detailed
approaching
the
administrative
developed,
record
analytically
before
it
on
the
specific factual findings with which it takes issue.5 In the face
of
divergent
analysis
of
expert
the
opinions
relevant
on
factual
documents
issues,
'requires
a
"[b]ecause
high
level
of
5 One factual statement in the R&R which the parties agree is a
misstatement, is that "there are 'uplands' areas in the drainage
zone that are twenty feet above the wetlands." R&R at 21; see
Obj. at 14, 16-17; Resp. at 11 ("While the Magistrate Judge's
statement ... is not accurate[,] the underlying principle that
the wetlands receive runoff from uplands is accurate"). However,
this
minor mischaracterization
of
the
record
does
not
the ultimate finding of the Magistrate Judge that
supports the Corps' finding of a significant nexus.
11
undermine
the
record
technical expertise,'
of the responsible
Res. Council,
Club,
427
we must defer to 'the informed discretion
federal agencies.'" Marsh v.
490 U.S.
U.S.
360,
412
390,
377
(1989)
(1976)).
Oregon Natural
(quoting Kleppe v. Sierra
"When
specialists
express
conflicting views, 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." Marsh, 490 U.S. at 378.
Although
the
court
does
not
apply
a
more
deferential
standard of review to the legal determination that the wetlands
have
a
significant
F.3d
at
290,
the
nexus
court's
conclusion
that
the
persuasive
support
through detailing
to
the
its
that
the Corps
data,
.
surveys,
.
River,
See Resp.
compels
the
and
significant
the
633
record
the
Precon,
.
examined
aerial
wetlands
to Obj.
at
determination).
(explaining
gathered available
photographs,
reaching
18-19
respect
its
historical
soil
and conducted onsignificant
nexus
In response to Precon's objections regarding the
functions of the wetlands,
record
in
provided
determination
play with
and national wetland inventory maps,
inspections"
amply
nexus
"documented field conditions,
the-ground site
in the
of
reasonably
functions
to the Northwest River.
Northwest
analysis
Corps
for
the
regarding
the Corps,
the wildlife
12
again,
pointed to evidence
connection
Precon
alleged
was lacking, and the role tributaries play in regulating water
flows and quality. See Resp. at 9-10 (citing AR at 4-7, 15-16,
466-494).
Evaluating
the
full
record,
including
Precon's
experts' factual findings and conclusions to the contrary, the
court
finds
supporting
that
its
arbitrary
and
determination
the
Corps'
significant
nexus
capricious,
that
the
extensive
and
relevant
factual
determination
that
the
wetlands
findings
were
Corps'
have
a
not
ultimate
significant
nexus to the Northwest River is highly persuasive.
IV.
Having
Record,
considered
the pleadings,
objections
Fourth
fully
and
reviewed
the
Administrative
the Report and Recommendation,
and responses
Circuit's
Conclusion
thereto
mandate
on
de
novo,
remand,
together
the
court
and the
with
the
ADOPTS
the
Magistrate Judge's Report and Recommendation,6 and hereby GRANTS
the
Corps'
Motion
for
Summary
Judgment
and DENIES
Precon's
Motion for Summary Judgment. The Clerk shall forward a copy of
this Opinion and Final Order to counsel for the parties.
6 As noted by the Corps, the Magistrate Judge's findings are
limited due to the procedural posture of the case. Resp. at 6
n.8. The Magistrate Judge reviewed the record and appropriately
concluded
the Corps'
that
there
"is
more
than
enough
evidence
to
support
finding that a significant nexus exists between the
wetlands and the Northwest River." R&R at
31.
This court agrees
with
that
finding,
and
with
the
Magistrate
Judge's
recommendation as to disposition of the case. See supra note 5.
13
IT
IS
SO ORDERED.
M
Rebecca Beach Smith
United States District Judge ~T*-y&"
REBECCA BEACH
SMITH
CHIEF UNITED STATES
November \%, 2013
14
DISTRICT JUDGE
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