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United States v. Lipar

ELR Citation: 45 ELR 20164
Nos. H-10-1904, (S.D. Tex., 08/30/2015) (Hughes, J.)

A district court dismissed EPA's enforcement action against a developer for filling wetlands in violation of the CWA and ordered the Agency to pay attorney fees the developer incurred defending the suit. Relying on the U.S. Supreme Court's opinion in Rapanos v. United States, 547 U.S. 715, 36 ELR 20116 (2006), the court concluded that the wetlands at issue in this case are nonjurisdictional under both the plurality test and the Kennedy test. Under the plurality test, nonadjacent wetlands are jurisdictional only if an adjacent channel contains a water of the United States and the wetland has a continuous surface connection with that water such that it is difficult to determine where the water ends and the wetland begins. Under the Kennedy test, nonadjacent wetlands are jurisdictional only if they possess a significant nexus to waters of the United States. Here, EPA claimed that the wetlands are jurisdictional because they have a continuous, surface connection to one or more of three tributaries that flow into a lake that flows into one creek that seasonally flows into a tributary of a second creek that is a traditional navigable water. But the second creek is not navigable. Even if it were, the wetlands are not sufficiently connected to it to be deemed jurisdictional. There is no known, continuous surface connection from the wetlands to the "navigable" creek. In addition, the lake is dammed, the first creek is dry absent rain, the three tributaries flow intermittently, and there is no difficulty determining where water ends and the wetlands begin. Nor do the wetlands have a substantial nexus to waters of the United States. The developer, therefore, was not required to obtain permits prior to filling the wetlands and is entitled to attorney fees.