Orchard Hill Building Company v. United States Army Corps of Engineers

In 2006, before commencing the second phase of a building project, Orchard Hill Building Company (plaintiff) sought a determination from the United States Army Corps of Engineers (the corps) (defendant) to establish whether wetlands created by drainage from the project’s first phase and rainwater (the Warmke wetlands) were subject to the corps’ jurisdiction under the Clean Water Act (CWA). The corps determined that the Warmke wetlands’ proximity to Midlothian Creek, a tributary to the Little Calumet River, a navigable-in-fact waterway, rendered the Warmke wetlands subject to the corps’ jurisdiction and CWA provisions. After three rounds of administrative appeals and remands, a corps engineer issued a supplemental report in 2013 indicating that the Warmke wetlands were part of 165 wetlands in the Midlothian Creek watershed. Based on scientific literature without accompanying water testing, the engineer concluded that the wetlands helped reduce flooding and pollution in downstream waters. The corps again found that the Warmke wetlands were within the corps’ jurisdiction because the wetlands, alone and in combination with other area wetlands, had a significant nexus to the Little Calumet River. Orchard Hill subsequently sought review of the corps’ determination in the district court. The district court upheld the corps’ determination, and Orchard Hill appealed.