Seventh Circuit Remands “Waters of the United States” Case to Corps of Engineers to Determine Whether there is a “Significant Nexus”

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Anthony B. Cavender analyzes the case Orchard Hill Building Co. v. U.S. Army Corps of Engineers.

July 10, 2018
Anthony B. Cavender - Gravel2Gavel Construction & Real Estate Law Blog

On June 27, the U.S. Court of Appeals for the Seventh Circuit decided the case of Orchard Hill Building Co. v. U.S. Army Corps of Engineers. The Court of Appeals vacated the decision of the District Court granting the U.S. Army Corps of Engineers’ (Corps) motion for summary judgment dismissing the Orchard Hill Building Company’s (Orchard) complaint that the Corps’ jurisdictional determination erroneously found that the waters at issue were “jurisdictional waters” under the Clean Water Act (CWA) subject to the Corps’ jurisdiction. Acknowledging that the Corps and EPA had promulgated a new rule re-defining “waters of the United States” in 2015—which is now being challenged in the courts—the Court of Appeals noted that this case is controlled by the pre-2015 definition of “waters of the United States.” The Court of Appeals remanded the case to the Corps, directing it to determine if there was a significant nexus, as required.

Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com



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