On August 30, 2015, a federal district court judge in Texas granted a developer’s motion for summary judgment against the United States and ordered the Government to reimburse the developer’s legal fees incurred in defending the Government’s lawsuit as a result of conduct that the court characterized as being “oppressive and dishonest.” According to the district court, in 2004, the developer began developing several tracts of land located in north Houston. In 2007, an investigator with the United States Environmental Protection Agency (U.S. EPA) advised the developer to stop developing its property because the property contained wetlands that U.S. EPA contended constituted jurisdictional waters of the United States. In May 2010, the United States sued the developer for violations of the Clean Water Act (CWA), and more specifically, for discharging fill into what the United States contended were waters of the United States without a CWA permit.
The court rejected the United States’ claims that the developer filled wetlands constituting jurisdictional waters of the United States finding instead that:
“Mill Creek and Dry Creek, as the latter’s name suggests, are little more than drainage ditches that conduct water only after a rain—a country boy could easily jump them. The same is true for the three tributaries. They are not permanent waters. The government’s characterization as seasonal is generous and accurate only insofar as they are wet in the Spring and Fall after is has rained. They are wetlands only in the same way that the entire area is coastal prairie.”
The court went on to state that “[t]he seasonal connection of some wetlands to seasonal tributaries that feed navigable waters is too tenuous a connection to give the government jurisdiction under the [CWA].”