United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ROBERT BLAKEY UNITED STATES DISTRICT JUDGE.
case is before the Court on cross motions for summary
judgment. For the reasons explained below, the Court denies
Plaintiff's motion for summary judgment  and grants
Defendant's motion . The Court also denies
Plaintiff's motion to strike .
Hill Building Company, d.b.a. Gallagher & Henry
(“G&H”), acquired title to a 100-acre parcel
of property (referred to as the “Warmke Parcel”)
in 1995 for the purpose of developing residential housing.
Soon thereafter, the Village of Tinley Park executed an
annexation agreement and passed a zoning ordinance allowing
G&H to develop the entire Warmke Parcel. Record  at
Warmke Parcel was divided into three sections. Twenty-five
acres on the southern portion of the property were to be
developed as a 168-unit townhome neighborhood. Sixty-one
acres on the northern portion were to be developed as a
169-unit single-family neighborhood. The remaining section,
situated between the townhome community to the south and the
single-family community to the north, was designed to
function as a storm water detention area to serve the two
neighborhoods. The water detention area was to be constructed
concurrent with the development of the townhomes on the
southern portion of the property. Id.
entire development was scheduled to take place in two phases.
Id. at 66. The townhomes, storm water detention
area, and sewer and water infrastructure necessary to serve
both neighborhoods were to be constructed during Phase I.
After Phase I was developed and the townhomes substantially
sold, Phase II was scheduled to commence, during which the
169 single-family homes were scheduled to be built.
began Phase I construction in early 1996, and the first sales
of townhomes took place in 1997. From 1998 until 2005, 132
townhomes were built and sold at a rate of 16.5 per year.
Id. The development plan was on target to begin
construction of the Phase II single-family homes as
scheduled, but the plan abruptly halted on November 17, 2006,
when the United States Army Corps of Engineers designated
approximately 13 acres of the undeveloped property as
“wetlands” and asserted jurisdiction to regulate
them. Id. at 67.
wetlands in question are on the northern portion of the
property, the section designated for Phase II development.
They drain south through a ditch into an open water detention
pond and then east into another open pond. From there, they
flow north via storm sewer pipe into a third open water pond,
and then into Midlothian Creek, a stream that flows directly
to the Little Calumet River, a traditional navigable water.
Record  at 16, 19, 24. The wetlands had been converted to
farming operations prior to December 23, 1985, but farming
stopped in 1996 and has not resumed. Wetland conditions
returned sometime thereafter. Id. at 14.
RELEVANT STATUTORY AND REGULATORY PROVISIONS
Clean Water Act
Corps asserted jurisdiction pursuant to the Clean Water Act
(“CWA”), which prohibits discharging any
“pollutant” into “navigable waters”
without a permit. 33 U.S.C. §§ 1311(a), 1362(12).
“Navigable waters” are defined in the CWA as
“waters of the United States.” 33 U.S.C. §
1362(7). Although the phrase “waters of the United
States” is not defined in the statute, it is defined in
the regulations promulgated by the Corps pursuant to the CWA.
Corps' regulations define “waters of the United
States” in seven categories: (1) traditional navigable
waters; (2) interstate waters; (3) other waters, the use,
degradation, or destruction of which could affect interstate
commerce; (4) impoundments of jurisdictional waters; (5)
tributaries of waters identified in (1) through (4); (6) the
territorial seas; and (7) wetlands adjacent to waters
identified in (1) through (6). 33 C.F.R. §
Rapanos v. United States, the Supreme Court reviewed
this regulatory definition of waters of the United States as
it applied to wetlands. 547 U.S. 715 (2006). In a plurality
opinion authored by Justice Scalia, the Court adopted the
“relatively permanent” standard, holding that
“waters of the United States” includes
“relatively permanent, standing or continuously flowing
bodies of water” that are connected to traditional
navigable waters. As the Seventh Circuit noted United
States v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir.
2006), however, the Court could not agree on the scope of
federal authority over wetlands. Justice Scalia believed that
wetlands fell within the scope of the CWA only when the Army
Corps of Engineers could show: “first, that the
adjacent channel contains a ‘water of the United
States' (i.e., a relatively permanent body of water
connected to traditional interstate navigable waters); and
second, that the wetland has a continuous surface connection
with that water, making it difficult to determine where the
‘water' ends and the ‘wetland' begins.
547 U.S. at 742. Justice Kennedy, in a concurring opinion,
wrote that the Corps' jurisdiction over wetlands
“depends upon the existence of a significant nexus
between the wetlands in question and the navigable waters in
the tradition sense.” Id. at 779. For a nexus
to be “significant” in this context, the wetlands
must “either alone or in combination with similarly
situated lands in the region significantly affect the
chemical, physical, and biological integrity of other covered
waters more readily understood as
‘navigable.'” Id. at 780. In
Gerke, the Seventh Circuit adopted Justice
Kennedy's more narrow approach to federal authority. As a
result, this Court follows suit.
Prior Converted Cropland Exemption
regulations contain various exemptions to the CWA's
prohibition on discharges into waters of the United States
based upon the nature or use of the land. Specifically, Corps
regulations specify that “prior converted
cropland” is not a water of the United States and
therefore the CWA discharge prohibitions do not apply to such
land. 33 C.F.R. § 328.3(a)(8). Upon the adoption of this
regulation, the Corps clarified that “prior converted
cropland” refers to wetlands that were manipulated for
farming purposes before December 23, 1985. The exemption does
not apply to areas where farming has been abandoned for five
consecutive years and where wetland characteristics have
returned. 58 Fed. Reg. 45008, 45034 (Aug. 25, 1993).
promulgated by the Corps authorize a District Engineer to
make a jurisdictional determination as to whether an area is
a water of the United States and thus within the Corps'
regulatory jurisdiction pursuant to the CWA. 33 C.F.R.
§§ 320.1(a)(6), 325.9. Once a jurisdictional
determination has been made by a District Engineer, there is
a single level of administrative appeal to the Division
Engineer. Id. § 331.3(a)(1). The appeal is
initiated when an affected party submits a Request for
Appeal, but the administrative appeal “is limited to
the information contained in the administrative record by the
date of the NAP [Notification of Appeal Process].”
Id. §§ 331.6(a), 331.7(f). The NAP is a
fact sheet that accompanies the jurisdictional determination
and that explains the administrative appeal process. Neither
party to the appeal may present new information, but either
party may “interpret, clarify or explain issues and
information contained in the record.” Id.
Division Engineer determines that an appeal is without merit,
his letter, which advises the applicant that the appeal is
without merit and confirms the District Engineer's
initial decision, becomes the final Corps decision.
Id. § 331.10(a). If, however, the Division
Engineer determines that the appeal has merit, he may remand
the matter to the District Engineer with instructions to
correct procedural errors or to “reconsider the
decision where any essential part of the district
engineer's decision was not supported by accurate or
sufficient information, or analysis, in the administrative
record.” Id. § 331.9(b). In the case of
remand, the District Engineer's decision, made pursuant
to the remand from the Division Engineer, becomes the final
Corps decision is Id. § 331.10(b).
First Jurisdictional Determination
case, the Chicago District Engineer issued an initial
jurisdictional determination on November 17, 2006, concluding
that approximately 13 acres of wetlands on the Warmke Parcel
are “waters of the United States” subject to
regulation under the CWA. Record [30-5] at 19. Significant to
the District Engineer's decision was the fact that the
identified wetlands drain via a storm sewer pipe “to
Midlothian Creek which is a tributary to the Little Calumet
River, a navigable water.” Id. G&H
administratively appealed that decision to the Division
Engineer, arguing that the November 2006 jurisdictional
determination failed to apply Rapanos. The Division
Engineer agreed and remanded the jurisdictional determination
to the District Engineer with instructions to reconsider its
decision in light of Rapanos. Id. at 1-2.
Second Jurisdictional Determination
District Engineer issued a second approved jurisdictional
determination in October 2010, applying Rapanos and
concluding that jurisdictional waters encompass the Warmke
Property because there is a significant nexus to the
navigable Little Calumet River. Record [30-3] at 3-4. The
District Engineer's decision was based upon a finding
that the wetlands in question drained into Midlothian Creek,
establishing a “physical hydrologic connection”
to the navigable Little Calumet River. Id. at 3.
This “significant nexus” enables
“pollutants, floodwaters, nutrients and organic carbon
to transport from the onsite wetland to the navigable water,
” significantly affecting “the chemical, physical
and biological integrity of the Little Calumet River, a
traditional navigable water.” Id. G&H
filed a second administrative appeal in January 2011, arguing
that the District Engineer erred in finding a significant
nexus and in concluding that the property was not exempt as
prior converted cropland. Record [30-2] at 75-77. The
Division Engineer determined that the second administrative
appeal was without merit in June 2011. Id. at 67-74.
Third Jurisdictional Determination and Final Remand
2011, G&H asked the Corps to reconsider its previous
appeal decision because of the 1993 prior converted cropland
designation excluding the parcel from CWA jurisdiction.
Id. at 27-32. The Corps agreed to reconsider the
decision and the District Engineer issued a third
jurisdictional determination on March 26, 2012, affirming the
prior decision. Record [30-1] at 75-77. Although the District
Engineer recognized that the property had previously been
used for agricultural activities, she determined that those
activities had ceased by the fall of 1996, that the
“wetland areas have not been farmed for 15 consecutive
years and wetland conditions have returned.”
Id. at 76. G&H filed a third administrative
appeal to the Division Engineer on May 24, 2012, arguing that
the District Engineer's significant nexus determination
was not supported by sufficient evidence. Id. at
64-73. The Division Engineer issued its review of the appeal
on May 9, 2013, concluding that the appeal had merit
“because the District [Engineer] failed to provide the
requisite explanation for its significant nexus
determination.” Id. at 48. The Division
Engineer remanded the appeal to the District Engineer with
instructions “to include sufficient documentation to
support its decision” and “to follow procedures
set forth in the 2008 Rapanos Guidance.”
Id. at 48, 52.
remand the District Engineer issued a new jurisdictional
determination on July 19, 2013, again concluding that there
is a significant nexus to the Little Calumet River, a
traditional navigable water, placing the property within the
protection of the CWA. Id. at 11. The District
Engineer concluded that the relevant wetlands “drain
via surface and subsurface connection to Midlothian creek, a
perennial stream tributary to the navigable Little Calumet
River, ” significantly affecting-alone and in
combination with other wetlands in the area-the chemical,
physical and biological integrity of the river. Record [30-1]
at 11. The District Engineer determined that this impact
constitutes a significant nexus under Rapanos. In
reaching this decision, the District Engineer provided
additional “significant nexus documentation” in
an eleven-page document titled “Warmke Site Wetland
Functions and Benefits to ...