UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-1871

DEERFIELD PLANTATION PHASE II-B PROPERTY OWNERS 

ASSOCIATION, INCORPORATED,

Plaintiff - Appellant,

v.

UNITED STATES ARMY CORPS OF ENGINEERS, CHARLESTON DISTRICT; 

ROBERT L. VAN ANTWERP, Lieutenant General, in his official 

capacity as Chief of Engineers, US Army Corps of Engineers; 

TREY JORDAN, Lieutenant Colonel, in his official capacity 

as District Engineer, US Army Corps of Engineers, 

Charleston District; UNITED STATES ENVIRONMENTAL PROTECTION 

AGENCY; LISA P. JACKSON, in her official capacity as 

Administrator of the US Environmental Protection Agency; A. 

STANLEY MEIBURG, in his official capacity as Acting 

Regional Administrator, Region IV, US Environmental 

Protection Agency; DEERTRACK GOLF, INC.,

Defendants - Appellees.

No. 11-2253

DEERFIELD PLANTATION PHASE II-B PROPERTY OWNERS 

ASSOCIATION, INCORPORATED,

Plaintiff – Appellee,

v.

DEERTRACK GOLF, INC.

Defendant – Appellant,

and
2

UNITED STATES ARMY CORPS OF ENGINEERS, CHARLESTON DISTRICT; 

ROBERT L. VAN ANTWERP, in his official capacity as Chief of 

Engineers, US Army Corps of Engineers; TREY JORDAN, 

Lieutenant Colonel, in his official capacity as District 

Engineer, US Army Corps of Engineers, Charleston District; 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; LISA P. 

JACKSON, in her official capacity as Administrator of the 

US Environmental Protection Agency; A. STANLEY MEIBURG, in 

his official capacity as Acting Regional Administrator, 

Region IV, US Environmental Protection Agency

Defendants.

Appeals from the United States District Court for the District 

of South Carolina, at Florence. R. Bryan Harwell, District 

Judge. (4:09-cv-01023-RBH)

Argued: October 25, 2012 Decided: December 26, 2012

Before MOTZ and KEENAN, Circuit Judges, and James K. BREDAR, 

United States District Judge for the District of Maryland, 

sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Amy Elizabeth Armstrong, SOUTH CAROLINA ENVIRONMENTAL 

LAW PROJECT, Pawleys Island, South Carolina, for Deerfield 

Plantation Phase II-B Property Owners Association, Incorporated. 

Elizabeth Ann Peterson, UNITED STATES DEPARTMENT OF JUSTICE, 

Washington, D.C., for Federal Appellees; Mary Duncan Shahid, 

NEXSEN PRUET, LLC, Charleston, South Carolina, for Deertrack 

Golf Inc. ON BRIEF: Michael G. Corley, SOUTH CAROLINA 

ENVIRONMENTAL LAW PROJECT, Pawleys Island, South Carolina, for 

Deerfield Plantation Phase II-B Property Owners Association, 

Incorporated. Ignacia S. Moreno, Assistant Attorney General, 

Aaron P. Avila, Jennifer Scheller Neumann, Adam J. Katz, UNITED 

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Federal 

Appellees. Stephen P. Groves, Sr., NEXSEN PRUET, LLC, 

Charleston, South Carolina, for Deertrack Golf, Inc.

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

In this appeal, we consider whether the United States 

Army Corps of Engineers (the Corps) properly determined that it 

did not have jurisdiction under the Clean Water Act, 33 U.S.C. 

§§ 1251 through 1387 (the Clean Water Act, or the Act), over 

certain ponds, ditches, and other waters on a former golf course 

located in South Carolina. Deerfield Plantation Phase II-B 

Property Owners Association, Inc. (the Homeowners’ Association, 

or the Association) filed this action against the Corps, the 

Environmental Protection Agency (the EPA), and Deertrack Golf, 

Inc. (the Property Owner) (collectively, the defendants), 

challenging as arbitrary and capricious the Corps’ determination 

that it did not have jurisdiction over such waters. The 

district court upheld the Corps’ decision, and awarded the 

defendants summary judgment. Upon our review, we affirm the 

district court’s judgment.

I.

This case arises from the planned redevelopment of a 

parcel of property in Horry County, South Carolina. A nowdefunct golf course, known as the “Old South Golf Course,” was 

located on this 152-acre parcel (the Deerfield Tract). In 2005, 

the Property Owner entered into a contract to sell the Deerfield 
4

Tract to Bill Clark Homes, which in turn planned to redevelop 

the parcel as a residential subdivision. 

The Homeowners’ Association is a nonprofit 

organization whose membership is composed of property owners in 

Deerfield Plantation, Phase II-B, a residential community 

developed alongside the old golf course. Thus, the residences, 

roads, and common areas owned by the Homeowners’ Association 

directly border or are located close to the Deerfield Tract. 

The Homeowners’ Association opposed Bill Clark Homes’ proposed 

redevelopment, alleging that the plan will increase flooding on 

nearby properties and will result in the destruction of wildlife 

habitat, diminishing the Association members’ use of the land 

and enjoyment of wildlife. 

The Corps is authorized to “issue formal 

determinations concerning the applicability of the Clean Water 

Act” to “tracts of land.” 33 C.F.R. § 320.1(a)(6). The Corps 

may decide whether a tract of land is subject to the agency’s 

regulatory jurisdiction under Section 404 of the Clean Water 

Act. 33 C.F.R. § 331.2. 

Section 404 requires, among other things, a permit for 

the “discharge of dredged or fill material into the navigable 

waters,” which are defined in turn as “waters of the United 

States.” 33 U.S.C. §§ 1344(a), 1362(7). The term, “waters of 

the United States,” includes not only traditional navigable 
5

waters, but also other water features that maintain a sufficient 

connection with “waters of the United States” in their own 

right, under standards provided by regulations, 33 C.F.R. § 

328.3(a), and articulated by the Supreme Court, most recently 

in Rapanos v. United States, 547 U.S. 715 (2006). 

In February 2006, a consultant for Bill Clark Homes 

filed a request for a jurisdictional determination from the 

Corps regarding whether any portion of the 152 acres comprising 

the Deerfield Tract contained “waters of the United States” 

subject to the Corps’ jurisdiction under the Clean Water Act. 

In August 2006, the Corps issued a jurisdictional determination 

that the Deerfield Tract did not contain any “waters of the 

United States” (the initial determination). By its terms, the 

Corps’ initial determination was valid for five years from the 

date of its issuance. 

In March 2010, the Corps issued a revised 

jurisdictional determination (the revised determination). The 

revised determination considered whether 85 acres of the 

Deerfield Tract were subject to the Corps’ jurisdiction, because 

the Property Owner had modified the scope of its request 

following the Corps’ initial determination. 

The Corps consulted a variety of sources before it 

reached a conclusion regarding the waters found on the Deerfield 

Tract. These sources included: (1) infrared aerial photography; 
6

(2) agency records; (3) a Horry County soil survey (Soil 

Survey); (4) a topographic map for Surfside Beach (Surfside 

Beach map); and (5) a wetland inventory for Surfside Beach 

(Wetland Inventory). To resolve conflicts in the evidence, the 

Corps also conducted two site visits. 

In the Soil Survey, the Corps found some evidence of 

the “potential presence of hydric soils onsite,” which “could be 

an indicator that wetlands or other jurisdictional waters are 

present on the site.” However, given the age of the Soil 

Survey, this evidence was not considered “conclusive” that 

hydric soils presently were located on the Deerfield Tract. 

The Corps did not find any evidence of wetlands on the 

Deerfield Tract in the more recent Surfside Beach map or in the 

Wetland Inventory. Those areas that the Soil Survey had 

indicated might qualify as wetlands were shown in those two 

sources as “upland, or dry land.” Moreover, on its site visits, 

the Corps did not find any “relic hydrophytic vegetation that 

would indicate whether this site historically contained 

wetlands.” Accordingly, the Corps “could not conclusively 

determine whether the [Deerfield Tract] was ever a wetland.” 

The Corps ultimately asserted Clean Water Act 

jurisdiction over only .37 acres of waters on the Deerfield 

Tract. The bases for this conclusion were as follows. The 

Corps found that two non-navigable tributaries were “relatively 
7

permanent waters,” in that they “typically flow year-round or 

have continuous flow at least seasonally (e.g., typically 3 

months).”1 The Corps concluded that the two relatively permanent 

waters each had a firm, sandy bottom with a clearly-defined 

channel that was free of vegetation, which “demonstrates 

continuous flow more than seasonally, because vegetation will 

not have a chance to establish itself due to the water’s flow.” 

The Corps also cited evidence of a clearly-defined ordinary high 

water mark, groundwater influx, and the degree of the curvature 

(or “sinuosity”) of the tributaries, as indicia that they have a 

“relatively permanent flow.” 

The Corps noted that the two relatively permanent 

waters flow out of the Deerfield Tract through a single point of 

exit, and empty into Dogwood Lake. The Corps identified Dogwood 

Lake as “an impounded reach of a relatively permanent water,” 

and thus, a “water of the United States” that flows into the 

Atlantic Ocean. 

 1

 The Corps rendered the revised determination based upon 

the standards articulated in the Clean Water Act Jurisdiction 

Following the U.S. Supreme Court’s Decision in Rapanos v. United 

States & Carabell v. United States (Dec. 2, 2008) (the Rapanos 

Guidance)). The Rapanos Guidance was jointly prepared by the 

Corps and the EPA, and it “instructs Corps and EPA personnel on 

how to make jurisdictional determinations that comply with the 

new rules for [Clean Water Act] jurisdiction announced by the 

Supreme Court in Rapanos.” Precon Dev. Corp., Inc. v. U.S. Army 

Corps of Eng’rs, 633 F.3d 278, 283 (4th Cir. 2011). 
8

Roughly one mile separates the two relatively 

permanent waters on the Deerfield Tract from the Atlantic Ocean. 

In light of evidence of “continuous” or “perennial flow” and of 

“a surface connection with the Atlantic Ocean,” the Corps found 

that the .37 acres of waters of the Deerfield Tract constituted 

non-navigable tributaries of traditional navigable waters, which 

had a relatively permanent flow of water. Accordingly, the 

Corps asserted Clean Water Act jurisdiction over these waters. 

The Corps did not assert jurisdiction over the 

remaining waters on the Deerfield Tract, describing them as “a 

series of ponds that are interconnected by a series of ditches 

and swales” (collectively, the Contested Waters).2

 Generally, 

the Corps does not consider swales, ditches, or ponds created to 

retain water primarily for aesthetic reasons as within its 

jurisdiction, if such waters are excavated from uplands and do 

not carry a relatively permanent flow to a traditional navigable 

water. (citing Rapanos Guidance, at 11-12; Final Rule for 

Regulatory Programs of the Corps, 51 Fed. Reg. 41,206, 41,217 

(Nov. 13, 1986)). The Corps only asserts jurisdiction over 

“non-navigable, not relatively permanent tributaries” when they 

have “a significant nexus to traditional navigable water.” 

 2 A “swale” is a “low tract of land, especially when moist 

or marshy.” The American Heritage Dictionary 1811 (3d ed. 

1992).
9

According to the Corps, the Contested Waters did not meet this 

standard. 

In its reasoning relating to the ditches and swales of 

the Deerfield Tract, the Corps found that they lacked indicia of 

relatively continuous flow, because they had no ordinary high 

water mark, no clear channel without vegetation, no significant 

channel sinuosity, and no influx of groundwater. The Corps 

determined that, instead, the ditches and swales “convey water 

from ponds and surrounding upland areas during and following 

storm events.” 

Next, the Corps considered the ponds on the Deerfield 

Tract, and determined that they were “man-made in uplands,” and 

that there was no evidence of wetlands or other tributaries on 

the Tract other than the .37 acres identified above. 

According to the Corps, the ponds were small bodies of water 

that were constructed primarily for aesthetic reasons associated 

with the design of a golf course. Significantly, the ponds were 

connected to the ditches and swales by elevated culverts. 

Therefore, the Corps found that the ponds were “constructed to 

maintain a certain water level and would flow only if the pond 

levels fluctuated above a certain point.” 

The Corps concluded that individually and 

collectively, the Contested Waters were characterized by low 

volume, duration, and frequency of water flow, and did not have 
10

a significant nexus with traditional navigable waters of the 

United States. Accordingly, the Corps declined to assert Clean 

Water Act jurisdiction over the Contested Waters. 

In May 2010, the Homeowners’ Association filed an 

amended complaint in the district court seeking a declaration 

that the Corps’ revised determination was arbitrary and 

capricious, and was issued in contravention of both the 

Administrative Procedure Act, 5 U.S.C. §§ 701 through 706, and 

the Clean Water Act. The Association challenged the Corps’ 

decision to assert jurisdiction over only the .37 acres of 

“relatively permanent waters,” and sought a judgment that all 

the Contested Waters on the Deerfield Tract qualified as “waters 

of the United States.” The parties filed cross motions for 

summary judgment. 

II.

The district court began its analysis of this case by 

discussing the meaning of the phrase, “waters of the United 

States,” as used in the Clean Water Act, 33 U.S.C. § 1362(7), 

and in the Corps’ implementing regulations, 33 C.F.R. § 

328(a). Deerfield Plantation Phase II-B Property Owners Ass’n, 

Inc. v. U.S. Army Corps of Eng’rs, 801 F. Supp. 2d 446, 449-51 

(D.S.C. 2011). The district court addressed the two standards 

articulated by the Supreme Court in Rapanos regarding whether 
11

certain water features were “waters of the United States,” 

namely, the standard provided by the four-Justice plurality (the 

relatively permanent waters standard), and the standard provided 

by Justice Kennedy in his concurrence (the significant nexus 

standard). Id. at 451-53. 

Under the relatively permanent waters standard, 

“waters of the United States” include “only those relatively 

permanent, standing or continuously flowing bodies of water 

forming geographic features that are described in ordinary 

parlance as streams . . . oceans, rivers, [and] 

lakes.” Rapanos, 547 U.S. at 739 (plurality opinion) (internal 

quotation marks omitted). The plurality stated that “[e]ven the 

least substantial of the definition’s terms, namely, ‘streams,’ 

connotes a continuous flow of water in a permanent channel,” and 

“[n]one of these terms encompasses transitory puddles or 

ephemeral flows of water.” Id. at 733 (plurality opinion). In 

fact, the plurality wrote that “relatively continuous flow is 

a necessary condition for qualification as a ‘water.’” Id. at 

736 n.7 (plurality opinion) (emphasis in original). 

By contrast, the significant nexus standard provides 

that “a water or wetland must possess a ‘significant nexus’ to 

waters that are or were navigable in fact or that could 

reasonably be so made.” Id. at 759 (Kennedy, J., concurring). 

Justice Kennedy stated that the required nexus for wetlands
12

would be established if “alone or in combination with similarly 

situated lands in the region, [they] significantly affect the 

chemical, physical, and biological integrity of other covered 

waters more readily understood as ‘navigable.’” Id. at 780 

(Kennedy, J., concurring). However, when the “wetlands’ effects 

on water quality are speculative or insubstantial,” such 

wetlands “fall outside the zone fairly encompassed by the term 

‘navigable waters.’” Id. (Kennedy, J., concurring). 

The district court concluded that it did not have to 

address which of the Rapanos tests governed, because the parties 

agreed that if either test was satisfied, the Contested Waters 

qualified as “waters of the United States.” Deerfield, 801 F. 

Supp. 2d at 452-53 & n.7. The district court also noted that 

the Rapanos Guidance provided that “regulatory jurisdiction 

under the [Clean Water Act] exists over a water body if either 

the plurality’s or Justice Kennedy’s standard is 

satisfied.” Id. at 453.

The district court rejected the Homeowners’ 

Association’s argument that the Corps relied exclusively on 

“flow” characteristics and disregarded the presence of 

“standing” water in the ditches, swales, and ponds that had a 

connection with the Atlantic Ocean. Deerfield, 801 F. Supp. 2d 

at 462. The district court observed that “flow” was a factor 

for the Corps’ consideration under the relatively permanent 
13

waters standard, because “[e]ven the least substantial of the 

definition’s terms [streams, oceans, lakes, and rivers,] namely, 

‘streams,’ connotes a continuous flow of water in a permanent 

channel.” Id. (quoting Rapanos, 547 U.S. at 733 (plurality 

opinion)) (emphasis in Deerfield). Indeed, the plurality 

in Rapanos noted that “relatively continuous flow is a necessary

condition for qualification as a ‘water.’” Id.

(quoting Rapanos, 547 U.S. at 736 n.7 (plurality opinion)) 

(emphasis in Deerfield). 

The district court found persuasive in the present 

case the Corps’ findings that the ditches and swales only 

contained flowing water after “storm events,” and that the ponds 

were constructed to “maintain a certain water level” and would 

flow into the ditches and swales only if the water level 

increased beyond a certain point. Id. at 462-63. Given the 

evidence that the Contested Waters were characterized by a lack 

of flow, the district court held that the Corps reasonably 

concluded that the Contested Waters were not “waters of the 

United States” under the relatively permanent waters 

standard. Id. at 463. 

The district court also disagreed with the Homeowners’ 

Association’s challenge to the Corps’ decision regarding the 

location along the second tributary where the Corps determined 

that its jurisdiction ended. The court held that the Corps 
14

reasonably determined the boundaries of its jurisdiction based 

on factors that were supported by the record, including 

differences in vegetation, evidence of groundwater influx, and 

the presence of an ordinary high water mark. Id. at 463.

Finally, the district court disagreed with the 

Homeowners’ Association’s argument that the Corps’ significant 

nexus analysis was erroneous, as well as arbitrary and 

capricious. After the Corps determined that the Contested 

Waters did not satisfy the relatively permanent waters standard, 

the Corps further concluded that the significant nexus standard 

likewise was not satisfied. The district court held that it was 

not arbitrary or capricious for the Corps to determine that, 

based upon “low volume, duration and frequency of water flow,” 

the Contested Waters’ ability to affect downstream navigable 

waters was limited, and did not constitute a significant 

nexus. Id. at 464-65. In sum, the district court found that 

“the methodology and procedures used by the Corps to arrive at 

its decision, as well as its findings and conclusions, were 

reasonable and not arbitrary and capricious.” Id. at 465. 

Accordingly, the district court awarded summary judgment in 

favor of the Corps and the EPA. Id.

The district court denied the Property Owner’s motion 

for costs and attorneys’ fees made under 33 U.S.C. § 

1365. Deerfield Plantation Phase II-B Property Owners Ass’n, 
15

Inc. v. U.S. Army Corps of Eng’rs, No. 4:09-cv-01023, 2011 WL 

4943914 (D.S.C. Oct. 17, 2011). The court declined to find that 

the Homeowners’ Association’s claims were “frivolous, 

unreasonable, or without foundation.” Id. at *2-4

(citing Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 415 

(1978)). The court noted that the Association initially was 

successful in obtaining the revised determination from the 

Corps, and that an environmental expert had provided evidence 

supporting the claim that the Contested Waters were “waters of 

the United States.” 

The Homeowners’ Association appeals the district 

court’s award of summary judgment in favor of the defendants. 

The Property Owner appeals the district court’s denial of its 

request for attorneys’ fees and costs. 

III.

We review de novo a district court’s ruling on a 

motion for summary judgment. Higgins v. E.I. DuPont de Nemours 

& Co., 863 F.2d 1162, 1167 (4th Cir. 1988). Summary judgment is 

appropriate only when “the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to 

judgment as a matter of law.” Fed. R. Civ. P. 56(a). In 

conducting our review, we consider the evidence in the light 
16

most favorable to the nonmoving party. Pueschel v. Peters, 577 

F.3d 558, 563 (4th Cir. 2009).

We will set aside a challenged agency action if it is 

“arbitrary, capricious, an abuse of discretion, or otherwise not 

in accordance with law.” 5 U.S.C. § 706(2)(A). In making this 

assessment, we consider “whether the agency considered the 

relevant factors and whether a clear error in judgment was 

made.” Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 

177, 192 (4th Cir. 2009) (citing Citizens to Preserve Overton 

Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)). Our review of 

agency action under § 706(2)(A) is deferential. Id. at 192. 

Thus, “recognizing the Corps’ expertise in administering the 

[Clean Water Act], we give deference to its interpretation and 

application” of the two standards articulated in Rapanos for 

ascertaining “waters of the United States.” See Precon, 633 

F.3d at 290.

Initially, we consider the defendants’ contention that 

the Homeowners’ Association did not establish the elements of 

standing, although the Corps raises this argument for the first 

time on appeal. See Smith v. Cnty. of Albemarle, 895 F.2d 953, 

954 (4th Cir. 1990). Given the timing of the standing 

challenge, we will consider additional evidence submitted by the 

Homeowners’ Association on the issue. See Ouachita Watch League 

v. Jacobs, 463 F.3d 1163, 1170-71 (11th Cir. 2006) (supplemental 
17

declarations permitted when standing is first challenged on 

appeal). 

We have reviewed the record, and conclude that the 

Homeowners’ Association demonstrated that the Association, and 

several of its members individually, have standing to bring the 

present action. The Association has demonstrated that its 

members have a factually-supported concern of flooding and of 

injury to their aesthetic and recreational interests as a result 

of the proposed redevelopment of the Deerfield Tract. See Lujan 

v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (stating 

elements of standing). 

With regard to the merits of the Homeowners’ 

Association’s action, like the district court, we conclude that 

the Corps did not err or abuse its discretion in determining 

that the Contested Waters were not “waters of the United States” 

under either the relatively permanent waters standard or the 

significant nexus standard articulated in Rapanos. The 

Association’s argument that the Corps “completely failed to 

apply the ‘significant nexus’ standard,” is undermined by the 

plain language of the Corps’ revised determination. Our review 

of the revised determination also leads us to conclude that the

Corps did not improperly emphasize the “flow” of the Contested 

Waters as a factor in its analysis. Rather, we think that the 

Corps engaged in a careful analysis of numerous permissible 
18

factors. After consulting a multitude of sources and conducting 

site visits, the Corps reached a well-supported conclusion 

locating the boundary between the two jurisdictional tributaries 

on the Deerfield Tract, and the Contested Waters over which the 

Corps ultimately found that it did not have jurisdiction. 

We also hold that the district court did not abuse its 

discretion in denying the Property Owner’s motion for attorneys’ 

fees and costs. See Johnson v. City of Aiken, 278 F.3d 333, 336 

(4th Cir. 2002) (attorneys’ fees award reviewed for abuse of 

discretion). We credit the reasons given by the district court 

in reaching its conclusion. The Association had obtained from 

the Corps a revised jurisdictional determination, and had 

presented expert evidence tending to show that portions of the 

Deerfield Tract contained “waters of the United States.” 

Despite the Property Owner’s arguments to the contrary, we 

discern no abuse of discretion. Thus, we affirm the district 

court’s award of summary judgment in favor of the defendants for 

the reasons well stated by the court, and we affirm the court’s 

denial of the Property Owner’s request for attorneys’ fees and 

costs.

AFFIRMED