Precon Development Corporation, Inc. v. United States Army Corps of Engineers, No. 2:2008cv00447 - Document 108 (E.D. Va. 2013)
Court Description: 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, )
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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 and Defendant ("Corps") United by of May 28 Order U.S.C. 72(b). on on States 5, 2013, § 636(b)(1)(B) The Magistrate May 23, 2013, Recommendation for Development to motions and motions referred Miller Procedure on cross 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, 443 acres "insufficient a found found analysis 4.8 (4th of 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 types (1) evidence: evidence of and their condition of the adjacent the of quantitative functions of the and (2) water. Id. tributaries; relevant navigable or 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 R&R largely Motion for Summary (1) 4, the condition of 6, (objections relation (objections 8, 10, 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 the is Quality DO levels but that situated wetlands any and from Assessment nitrogen excessive unsupported of concern, as maximum daily for role the play impact Northwest River. by the are and/or nitrogen, evidence. Id. the at nitrogen. Precon in evidenced by the Id. at wetlands nitrogen chemical load or and explained, rather the than for Precon thus the cycling biological fact ("TMDL") 12. similarly does not quality of the 9. This chain of logic collapses under scrutiny. phosphorous Quality conditions of total a not concludes Corps low Precon strenuously objects to any suffers false a nutrient developed significantly river Low high 447. to Precon argues that the record solely supports that is phosphorous, 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 for record, 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 to low DO and nitrogen levels. remand, stated that "we adjacent tributaries 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, of of the the river. Clean physical, Water and § wetlands This, Act "to biological course, and integrity of maintain the the Nation's the Corps has considerable evidence from both DEQ and its experts impaired body of water, Northwest River Here, the concedes, the added). preventing effectuates restore (emphasis in 33 that 1251 of serve waters." own U.S.C. benefits is, as Precon 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 flow gauges "direct comparison of the flows in the river to those in Saint Brides Ditch is Supp. Mot. no not possible." Mem. 19, n.14. In the absence of a perfectly the rates flow water, 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 report, Cahoon's and the supporting reliance including his upon 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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