An Unusual Wetlands Case

In most wetlands cases, landowners are challenging determinations by the Army Corps of Engineers (Corps) that wetlands are present on their property. However, in Deerfield Plantation Phase II-B Property Owners Association v Army Corps of Engineers , 2011 U.S.Dist. LEXIS 75766 (D.S.C. 7/12/11), the plaintiffs argued that the Corps improperly determined that only a fraction of land on a former course near the subdivision contained jurdictional wetlands.

In this case, the owners the  Old South Golf Course sold the land to Bill Clark Homes of Myrtle Beach (BCH) in 2005. BCH intended to redevelop the golf course into a residential sub-division and submitted a request for a jurisdictional determination (JD) to the local Corps office. In August 2006, the Corps determined that only 0.37 acres  of the 85-acre parcel contained “waters of the United States” consisting of a portion of two channels on the property totaling 920 liner feed.

In making this JD, the Corps said the two channels on the property had sandy bottoms, were free of vegetation, had a steady influx of groundwater and that a highwater mark was clearly present. The Corps also said the flow from the two tributaries went off-site through a box culvert, continued through a stormwater detention pond and into a culvert under a highway before connecting to the Dogwood Lake, a navigable water body. Based on these observations, the Corps said that the two channels satisfied the  “relatively permanent waters” (RPW) test of the plurality’s holding in  the Supreme’s Court’s decision in Rapanos v United States, 547 U.S. 715 (2006)(“Rapanos”).

However, the Corps determined that the remaining ponds that were interconnected with a series of ditches and swales did not constitute RPW. The Corps said these structures had been constructed in and only drained upland areas. The Corps also said the small, artificial ponds which were created primarily for  “ornamental” or “aesthetic” purposes were not ordinarily considered RPW. Moreover, the Corps concluded these waterbodies did qualify for the “significant nexis” test articulated by Justice Kennedy in his concurring opinion in Rapanos because of their low volume, duration and frequency.” The Corps determination meant that BCH was free to dredge or fill the vast balance of the property.

The Deerfield Property Owners Association (POA) then filed a lawsuit challenging the JD. The Deerfield POA argued that network of water bodies on the golf course did qualify as jurisdictional wetlands. In reviewing administrative actions, courts do not generally engage in an independent review but determine if the agency acted arbitrarily or capriciously. On the RPW analysis, the court said the Corps had conducted on-site inspections, reviewed infrared. aerial photographs, topographic maps, and soil surveys. As a result, the court found  that Corps had reasonably concluded that the ditches, ponds and swales had been excavated in upland areas. The court also said the Corps also acted property when it applied its long-standing interpretation and concluded that artificial ponds were likely constructed for the purpose of retaining water and that retained water for aesthetic reasons was a common feature of golf course design and construction.

On the “significant nexis” test, the POA asserted that the Corps had failed to specific measurements of flow when ruling these structures did not have a significant impact on navigable waters. However, the court upheld the use of such qualitative, physical indicators as lack of high water mark, thick and matted vegetation and lack of groundwater recharge. Thus, the court ruled that the Corps had reasonably concluded that because of the low flow of the ditches and swales along with the vegetation present in these structures, the ability to affect the physical,chemical or biological integrity of downstream navigable waters was insubstantial and speculative at best.