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].” 

The court then went on to address some of the Government’s actions in the litigation.  The court was critical of the Government’s overly broad assertion of privilege, noting that a special master found that 88% of the documents that the Government had claimed to be privileged in fact were not privileged.  The court further noted that:

“[t]he Government has not followed court orders or has done so only after months of recalcitrance.  When ordered to produce data, it either did not comply or did so only half-heartedly.  It has never followed the spirit of the court’s orders, and, at best, it only sometimes complied with the letter.  It has withheld papers under claims of privilege either maliciously or because it is grossly incompetent.  It has abused its power in an attempt to brow-beat the defendants and discourage their colleagues and competitors from developing similar areas.”

As such, the court granted the developer’s motion for sanctions and ordered the Government to reimburse developer’s attorneys' fees incurred in defending what the court found to be meritless enforcement action. 

Please click here to see a copy of the court's order.