Deerfeild Plantation Phase II-B Property Owners Ass'n v. United States Army Corps of Engineers

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-1871

DEERFIELD PLANTATION PHASE II-B PROPERTY OWNERS
ASSOCIATION, INCORPORATED,

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 II-B PROPERTY OWNERS
ASSOCIATION, INCORPORATED,

Plaintiff – Appellee,

v.

DEERTRACK GOLF, INC.

Defendant – Appellant,

and
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Affirmed by unpublished per curiam opinion.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 did not have jurisdiction over such waters. The

district court upheld the Corps’ decision, and awarded the

defendants summary judgment. 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 residential community

developed alongside the old golf course. 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.” 33 U.S.C. §§ 1344(a), 1362(7). The term, “waters of

the United States,” includes not only traditional navigable

4
waters, but also other water features that maintain a sufficient

connection with “waters of the United States” in their own

right, under standards provided by regulations, 33 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 determination considered whether 85 acres of the

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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(2) agency records; (3) a Horry County soil survey (Soil

Survey); (4) a topographic map for Surfside Beach (Surfside

Beach map); and (5) a wetland inventory for Surfside Beach

(Wetland Inventory). 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 site.” However, given the age of the Soil

Survey, this evidence was not considered “conclusive” 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. Those areas that the Soil Survey had

indicated might qualify as wetlands were shown in those two

sources as “upland, or dry land.” Moreover, on its site visits,

the Corps did not find any “relic hydrophytic vegetation that

would indicate whether this site historically contained

wetlands.” Accordingly, the Corps “could not conclusively

determine whether the [Deerfield Tract] was ever a wetland.”

The Corps ultimately asserted Clean Water Act

jurisdiction over only .37 acres of waters on the Deerfield

Tract. 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 flow at least seasonally (e.g., typically 3

months).” 1 The Corps concluded that the two relatively permanent

waters each had a firm, sandy bottom with a clearly-defined

channel that was free of vegetation, which “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).

7
 Roughly one mile 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 traditional navigable water.”

2
A “swale” is a “low tract of land, especially when moist
or marshy.” The American Heritage Dictionary 1811 (3d ed.
1992).

8
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. Significantly, the ponds were

connected to the ditches and 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 Corps concluded that individually and

collectively, the Contested Waters were characterized by low

volume, duration, and frequency of water flow, and did not have

9
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’ revised determination was arbitrary and

capricious, and was issued in contravention of both the

Administrative Procedure Act, 5 U.S.C. §§ 701 through 706, and

the Clean Water Act. The Association challenged the Corps’

decision to assert jurisdiction over only the .37 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 the Corps’ implementing regulations, 33 C.F.R. §

328(a). 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

10
certain water features were “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, standing or continuously flowing bodies of water

forming geographic features that are described in ordinary

parlance as streams . . . oceans, rivers, [and]

lakes.” 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 transitory puddles or

ephemeral flows of water.” 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 navigable in fact or that could

reasonably be so made.” Id. at 759 (Kennedy, J., concurring).

Justice Kennedy stated that the required nexus for wetlands

11
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 as ‘navigable.’” Id. at 780

(Kennedy, J., concurring). However, when the “wetlands’ effects

on water quality are 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

qualified as “waters of the United States.” Deerfield, 801 F.

Supp. 2d at 452-53 & n.7. The district court also noted that

the Rapanos Guidance provided that “regulatory jurisdiction

under the [Clean Water Act] exists over a water body if either

the plurality’s or Justice Kennedy’s standard is

satisfied.” Id. at 453.

The district court rejected the Homeowners’

Association’s argument that the Corps relied exclusively on

“flow” characteristics and disregarded the 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 the Corps’ consideration under the relatively permanent

12
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. (quoting Rapanos, 547 U.S. at 733 (plurality

opinion)) (emphasis in Deerfield). Indeed, the plurality

in Rapanos noted that “relatively continuous flow is a necessary

condition for qualification as a ‘water.’” Id.

(quoting Rapanos, 547 U.S. at 736 n.7 (plurality opinion))

(emphasis in Deerfield).

The district court found persuasive in the present

case the Corps’ findings that the ditches and 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 level

increased beyond a certain point. Id. at 462-63. Given the

evidence that the Contested Waters were characterized by a lack

of flow, the district court held that the Corps reasonably

concluded that the Contested Waters were not “waters of the

United States” under the relatively permanent waters

standard. 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. The court held that the Corps

13
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

the presence of an ordinary high water mark. Id. at 463.

Finally, the district court disagreed with the

Homeowners’ Association’s argument that the Corps’ significant

nexus analysis was erroneous, as well as arbitrary and

capricious. After the Corps determined that the 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’ ability to affect downstream navigable

waters was limited, and did not constitute a significant

nexus. Id. at 464-65. In sum, the district court found that

“the methodology and procedures used by the Corps to arrive at

its decision, as well as its findings and conclusions, were

reasonable and not arbitrary and capricious.” Id. at 465.

Accordingly, the district court awarded summary judgment in

favor of the Corps and the EPA. Id.

The district court denied the Property Owner’s motion

for costs and attorneys’ fees made under 33 U.S.C. §

1365. Deerfield Plantation Phase II-B Property Owners Ass’n,

14
Inc. v. U.S. Army Corps of Eng’rs, No. 4:09-cv-01023, 2011 WL

4943914 (D.S.C. Oct. 17, 2011). The court declined to find that

the Homeowners’ Association’s claims were “frivolous,

unreasonable, or without foundation.” Id. 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 a district court’s ruling on a

motion for summary judgment. 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

15
most favorable to the nonmoving party. Pueschel v. Peters, 577

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). In making this

assessment, we consider “whether the agency considered the

relevant factors and whether a clear error in judgment was

made.” 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)). Our review of

agency action under § 706(2)(A) is deferential. Id. at 192.

Thus, “recognizing the Corps’ expertise in 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 (4th Cir. 1990). 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
declarations permitted when 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 standard articulated in Rapanos. The

Association’s argument that the Corps “completely failed 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. Rather, we think that the

Corps engaged in a careful analysis of numerous permissible

17
factors. After consulting a multitude of sources and conducting

site 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 Association had obtained from

the Corps a revised jurisdictional determination, and had

presented expert evidence tending to show that portions of the

Deerfield Tract contained “waters of the United States.”

Despite the Property Owner’s arguments to the contrary, we

discern no abuse of discretion. 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

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