• Mark Ryan

A New Corps JD Case

The two decisions below both arise from the same case in which plaintiff challenged the Corps JD on his property. The JD was performed using the significant nexus test. Under the 2020 WOTUS rule, pre-rule JDs remain in effect until they expire. The court's analysis in this case highlight's the biggest shortcoming of the significant nexus test: the time-consuming, expensive and laborious nature of data collection on a case-by-case basis needed to establish jurisdiction. The court found the record wanting.

Lewis v. USACOE, 2020 WL 4798496 (E.D. La. 2020) (on motion for summary judgment, held that Corps failed to established record to support conclusion that wetlands on plaintiff’s property had a significant nexus to downstream waters; record does not show that flow in ditches draining property is substantial and that it has a significant downstream impact on a TNW; rejected Corps argument that it didn’t have “a budget for research level data collection” on every site; remanded matter to Corps)

Lewis v. USACOE, 2020 WL 4785045 (E.D. La. 2020) (denying motion for declaration that plaintiff’s property contained no jurisdictional wetlands and that the land shall never be regulated by the Corps; court denied motion on grounds that is duplicative of issues raised in complaint challenging Corps JD on plaintiff’s property and “Because Congress has authorized [the Corps] to pass in the first instance on the [JD] plaintiffs dispute, this court may not preempt that role.”)

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