Precon Development v. U.S. Army Corps of Engineers

• Decision Date: 04 September 2009
• Docket Number: Action No. 2:08cv447.
• Citation: 658 F.Supp.2d 752
• Parties: PRECON DEVELOPMENT CORPORATION, INC., A Virginia Corporation, Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

658 F.Supp.2d 752

PRECON DEVELOPMENT CORPORATION, INC., A Virginia Corporation, Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS, Defendant.

Action No. 2:08cv447.

United States District Court, E.D. Virginia, Norfolk Division.

September 4, 2009.

Douglas Eugene Kahle, Mark Randolf Baumgartner, Pender & Coward PC, Virginia Beach, VA, for Plaintiff.

Austin David Saylor, Kent Edmund Hanson, U.S. Department of Justice, Washington, DC, Craig Paul Wittman, United States Attorney's Office, Norfolk, VA, for Defendant.

FINAL ORDER

REBECCA BEACH SMITH, District Judge.

This matter comes before the court on the Motion for Summary Judgment, filed by the plaintiff on March 6, 2009, and the defendant's Cross Motion for Summary Judgment filed on April 17, 2009. The matter was referred to a United States Magistrate Judge by order of June 3, 2009, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b), to conduct hearings, including evidentiary hearings, if necessary, and to submit to the undersigned proposed findings of fact, if applicable, and recommendations for the disposition of the motions.

The United States Magistrate Judge's Report and Recommendation was filed on August 19, 2009. (Docket # 54). The magistrate judge recommended that the plaintiffs motion for summary judgment be denied and defendant's motion for summary judgment be granted. By copy of the Report and Recommendation, the parties were advised of their right to file written objections thereto. On September 2, 2009, the court received the plaintiffs objections to the Magistrate Judge's Report and Recommendation, in which the plaintiff also requests a further hearing in this matter. (Docket # 55).

The magistrate judge conducted a hearing on August 4, 2009, on the cross-motions for summary judgment, and the transcript of that proceeding was filed on August 7, 2009. (Docket # 53). The magistrate judge thoroughly heard the issues raised by both parties, and issued a comprehensive Report and Recommendation. Further hearing in this matter will not aid in the decisional process.

The court, having examined the objections by the plaintiff to the Report and Recommendation and having made de novo findings with respect thereto, does hereby adopt and approve in full the findings and recommendations set forth in the Report and Recommendation of the United States Magistrate Judge filed August 19, 2009. Accordingly, the plaintiffs motion for summary judgment is hereby DENIED; the defendant's motion for summary judgment is hereby GRANTED. The Clerk shall enter judgment for the defendant and the case is DISMISSED from the docket.

The Clerk shall forward a copy of this Final Order to counsel for the parties.

It is SO ORDERED.

REPORT AND RECOMMENDATION

TOMMY E. MILLER, United States Magistrate Judge.

This matter was referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 72(b) of the Federal Rules of Civil Procedure, as well as Rule 72 of the Rules of the United States District Court for the Eastern District of Virginia, by order of reference entered June 3, 2009 [Doc. 44], for a Report and Recommendation on the parties' cross motions for summary judgment [Docs. 39, 41].

I. UNDISPUTED FACTS¹

1. Precon Development Corporation, Inc. ("Precon" or "Plaintiff') is the developer of a 658 acre planned unit project ("Edinburgh") in Chesapeake, Virginia.

2. Precon seeks to develop 10 residential building lots (the "Site") in Edinburgh. Within the Site, 4.8 acres of wetlands ("Site Wetlands") would potentially be impacted by the development.

3. The Site Wetlands are not marsh land, but rather, are areas of poorly draining soil, situated about 20 feet above sea level, which fall within the regulatory definition of wetlands. (R. at 0108_1_011.)² The Site Wetlands are part of a larger 166 acres of wetlands ("Western Wetlands") situated on the western side of Edinburgh. (R. at 01 57_1_003.)

4. A 2,500 foot long ditch ("the Ditch") runs adjacent to the Site Wetlands, along the western boundary of Edinburgh. (R. at 0157_1_003; 0157_2_013.) A continuous berm separates the Ditch and the Site Wetlands, cutting off any direct surface connection. (R. at 0160_00_005.)

5. The Ditch flows seasonally, primarily from rainfall. Id. The Ditch runs north from the southwestern corner of Edinburgh until it intersects with Saint Brides Ditch approximately 900 feet north of the Site Wetlands. (R. at 0157_2_006; 0157_2_013.)

6. Saint Brides Ditch, in part, runs along the border of the remaining Western Wetlands. A minimum of 3 breaks are present in the berm along this border, and water from the Western Wetlands flows into Saint Brides Ditch through these breaks. (R. at 0160_00_005.) Also, subsurface flow exists; specifically, the Western Wetlands slowly release groundwater into Saint Brides Ditch. Id.

7. Saint Brides Ditch is a perennial flow.³ (R. at 0160_00_003.)

8. Saint Brides Ditch originates north of Edinburgh and flows south, eventually running parallel to Edinburgh's western boundary. (R. at 0157_1_003.) Saint Brides Ditch then flows west, away from Edinburgh, for 2,250 feet, then south for 5,500 feet, then southeast for 2,235 feet where it crosses under Saint Brides Road, then another 4,088 feet where it joins another tributary of the same order, then south for 11,053 feet where it joins Hickory Ditch, then on another 8,300 feet where the combined tributary drains into the Northwest River. (R. at 0157_2_009.)

9. The Northwest River is a traditional navigable water. (R. at 0157_1_003.)

II. PROCEDURAL HISTORY

In 2001, the United States Army Corps of Engineers ("Corps" or "Defendant") filed suit against the previous developer of Edinburgh for alleged violations of the Clean Water Act ("CWA"). United States v. RGM Corp., 222 F.Supp.2d 780 (E.D.Va. 2002). The Corps alleged the owner had discharged fill material into navigable waters without the requisite permits, but District Judge Morgan held that the property was not subject to jurisdiction under the CWA. Id. at 788. While the Corps' appeal was pending, however, the Fourth Circuit upheld the Corps' jurisdiction in a case with similar facts. Soon afterward, in October 2004, the litigants in the RGM case agreed to a settlement, which included obtaining a court order vacating Judge Morgan's original judgment. Also under the settlement agreement, Precon pledged to seek permits for any future impacts to "alleged waters of the United States," but reserved the right to challenge the Corps' jurisdiction under the CWA. (R. at 0032_001-005.)

Since the settlement agreement, Precon has submitted two separate permit applications under Section 404 of the CWA. The first application, originally submitted on August 4, 2005, requested authorization for a residential development in the northern portion of Edinburgh. (R. at 0055_1_008.) The project, known as Edinburgh CC2a ("Project CC2a"), claimed a potential impact on 2.174 acres of wetlands, but the plans attached to the application suggested an impact on approximately 100 acres of wetlands, including the 4.8 acre Site Wetlands. (R. at 0055_1_026.) After a meeting on April 18, 2006, the Corps communicated it was "relying on [Precon's] intent not to develop additional areas on the [Edinburgh] property to move forward with the processing of the proposed impacts in CC2a. . . ." (R. at 0082_001.)⁴ On June 27, 2006, the Corps granted the CC2a permit to allow the impact on the 2.174 acres of wetlands. (R. at 0103_001.)

Precon submitted a second permit application on December 29, 2006, requesting authorization to develop more of Edinburgh and impact another 10.7 acres of wetlands. (R. at 0108_001.) This proposed project, known as CC1b, involved both residential development and the creation of a recreational facility. (R. at 0108_01_010.) Precon subsequently deleted the recreational facility from the proposal, but Project CC1b still includes the 4.8 acres of wetlands at issue, the Site Wetlands. Precon requested a jurisdiction determination ("JD"), and on May 31, 2007, the Corps concluded that the Site Wetlands were subject to jurisdiction under the CWA. Precon appealed the JD, and an administrative appeals conference was held on September 13, 2007. During the pendency of the JD appeal, the Corps denied Precon's permit application to impact the Site Wetlands. Precon appealed the permit denial, and another administrative appeals conference was held on October 30, 2007.

On December 10, 2007, the Corps' appeals officer remanded the JD back to the Corps' Norfolk District to reconfirm jurisdiction under the CWA, using the Corps' written guidance issued subsequent to the U.S. Supreme Court's decision in Rapanos v. United States, 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006). On June 2, 2008, the Corps' Norfolk District reconfirmed that the Site Wetlands were subject to jurisdiction under the CWA, and in July 2008, the Corps' appeals officer upheld the denial of Precon's permit application.

Having exhausted all administrative avenues for relief, Precon filed suit against the Corps in the U.S. District Court for the Eastern District of Virginia, on September 18, 2008, requesting this Court to (1) enter a declaratory judgment holding that the Site Wetlands are not subject to federal jurisdiction under the CWA, and in the alternative, (2) "set aside the Corps' permit denial and direct the Corps to issue a permit to allow the proposed activities." (Compl. [Doc. 1] at 12-13.)

Months later, both parties filed for summary judgment pursuant to the procedure prescribed by the Court's Amended Scheduling Order. [Doc. 38.] On March 6, 2009, Precon moved this Court for summary judgment [Doc. 39] and filed a memorandum in support ("Pl.'s Br." [Doc. 40]). On April 17, 2009, the Corps filed a Cross Motion for Summary Judgment [Doc. 41] and a Memorandum in Support of its Cross Motion for Summary...