Orchard Hill Building Co. v. U.S. Corps of Engineers

Record failed to support defendant’s determination that certain wetlands on plaintiff’s property qualified as “waters of U.S.” so as to bring wetlands within coverage of Clean Water Act. Closest navigable water was Little Calumet River, which was 11 miles away from instant wetlands, and defendant based its determination that subject wetlands qualified as waters of U.S., where: (1) there was intermittent flow of water from wetlands to Midlothian Creek, which was tributary of Little Calumet River; and (2) significant-nexus analysis listed 165 wetlands that were adjacent to Midlothian Creek, including instant wetlands, such that plaintiff’s wetlands had significant impact on physical and biological integrity of Little Calumet River. However, remand was required, since defendant failed to explain how loss of plaintiff’s wetlands would have significant impact on any floodwater rise in applicable area or increase in downstream nitrogen. Also, defendant failed to explain how all 165 wetlands, including plaintiff’s wetlands, were actually in proximity to Midlothian Creek or how plaintiff’s wetlands were similarly situated to other wetlands within applicable watershed area.