## Facts

- Orchard Hill Building Company (a residential developer) purchased the “Warmke parcel,” a roughly 13-acre wetland tract in suburban Chicago, intending to develop it for housing.
- The nearest traditional navigable water, the Little Calumet River, is about 11 miles from the parcel.
- Water from the wetlands drains through man-made storm sewers and roadside ditches into Midlothian Creek, which is a tributary to the Little Calumet River.
- Orchard Hill sought a determination from the U.S. Army Corps of Engineers that the wetlands were not subject to Clean Water Act (CWA) jurisdiction.
- The Corps issued a final jurisdictional determination asserting the wetlands were “waters of the United States,” relying on wetlands “adjacent” to a tributary and the “significant nexus” framework associated with Rapanos.

## Issues

1. Whether the Corps’ determination that the Warmke wetlands are CWA “waters of the United States” was supported by substantial evidence that the wetlands have a “significant nexus” to a traditional navigable water.
2. Whether the Corps, under the Administrative Procedure Act, reasonably explained its conclusion by connecting its factual findings to a non-speculative significant-nexus determination.

## Decision

- The Seventh Circuit reversed the district court’s summary judgment for the Corps.
- The court held the Corps failed to provide substantial evidence that the Warmke wetlands, alone or with similarly situated wetlands, significantly affected the chemical, physical, or biological integrity of the Little Calumet River.
- The court found the Corps’ analysis relied on generic, conclusory statements and did not adequately address the wetlands’ distance from navigable waters and indirect, man-made hydrologic connection.
- The court vacated the Corps’ jurisdictional determination and remanded for reconsideration consistent with its opinion.

## Legal Principles

- After Rapanos, adjacency to a tributary is not by itself sufficient to establish CWA jurisdiction over wetlands; the Corps must demonstrate a significant nexus to navigable-in-fact waters.
- A significant nexus requires evidence that the wetlands, alone or in combination with similarly situated lands, have more than speculative or insubstantial effects on downstream navigable waters’ integrity.
- Under the APA, the agency must provide a reasoned explanation that links record facts to its conclusion; boilerplate assertions about wetlands’ general ecological functions are insufficient without site-specific support.
- If the agency invokes cumulative effects from “similarly situated” wetlands, it must identify the relevant group and explain, with supporting evidence, how their combined effects are significant.

## Conclusion

The Seventh Circuit set aside the Corps’ Clean Water Act jurisdictional determination because the agency did not supply site-specific, non-conclusory evidence or a reasoned explanation showing that these wetlands had a significant nexus to the Little Calumet River, and it remanded for the Corps to reassess jurisdiction under the proper evidentiary and explanatory standards.


Orchard Hill Bldg. Co. v. U.S. Army Corps of Eng'rs, 893 F.3d 1017 (7th Cir. 2018)