“Continuous-Surface-Connection” Pleading Rule & Limited Waiver Doctrine:
Glynn Environmental Coalition, Inc. v. Sea Island Acquisition, LLC (11th Cir. 2025)

Introduction

Glynn Environmental Coalition, Inc. v. Sea Island Acquisition, LLC is the Eleventh Circuit’s first comprehensive application of the Supreme Court’s 2023 decision in Sackett v. EPA at the pleading stage. The case clarifies two critical issues for Clean Water Act (CWA) litigation:

1. Pleading Standard Post-Sackett: Citizen-suit plaintiffs must allege facts showing a continuous surface connection between the challenged wetland and a traditional navigable water in order to survive a Rule 12(b)(6) motion.
2. Scope of Waiver in Preliminary Jurisdictional Determinations (PJDs): Acceptance of a Nationwide Permit accompanied by a PJD does not waive a landowner’s right to contest federal jurisdiction in subsequent citizen suits.

Although a concurrence urged an even broader holding—that citizens cannot enforce Section 404 (i.e., §1344) permits at all—the panel’s precedential opinion rests on the two points above, charting a narrower yet highly consequential path for future CWA enforcement actions.

Background of the Case

• Parties: Environmental NGOs and an individual resident (plaintiffs) sued Sea Island Acquisition, LLC (defendant), owner of a hotel parcel on St. Simons Island, Georgia.
• Factual Setting: In 2013 the company filled a 0.49-acre wetland under Nationwide Permit 39 based on a preliminary jurisdictional determination (PJD) issued by the U.S. Army Corps of Engineers.
• Claims: Plaintiffs alleged (1) violations of §404 because the activity exceeded or violated the permit, (2) violations of §401 state certification, and (3) unpermitted discharges under §301.
• Procedural Path: After an initial dismissal for lack of standing (reversed on appeal), the district court dismissed for failure to state a claim following Sackett. Plaintiffs appealed again, giving rise to the present decision.

Summary of the Judgment

1. No Waiver of Jurisdictional Defense – Sea Island’s acceptance of the PJD/NWP 39 verification did not foreclose its right to challenge federal CWA jurisdiction when sued by private citizens.
2. Insufficient Allegations Under the Sackett Test – Plaintiffs failed to plead facts plausibly showing that the filled wetland maintained a continuous surface connection to Dunbar Creek or any other traditional navigable water. Conclusory statements and references to culverts, pipes, or historical tidal exchange were inadequate.
3. Affirmance of Dismissal – The complaint was properly dismissed under Rule 12(b)(6); subject-matter jurisdiction and mootness arguments raised by the defendant were rejected as conflating merits with jurisdiction.

Analysis

4.1 Precedents Cited and Their Influence

• Sackett v. EPA, 143 S. Ct. 1322 (2023)
  Established the continuous surface connection requirement. The Eleventh Circuit treats Sackett as controlling even at the motion-to-dismiss stage, requiring detailed factual allegations.
• U.S. Army Corps of Engineers v. Hawkes Co., 578 U.S. 590 (2016)
  Clarified finality of approved JDs. Court distinguished PJDs (non-final, non-appealable) and emphasized their contractual nature—supporting the limited scope of waiver.
• National Ass’n of Home Builders v. EPA, 786 F.3d 34 (D.C. Cir. 2015)
  Explained why landowners sometimes accept PJDs for permitting efficiency, reinforcing the idea that such acceptance should not strip later jurisdictional defenses.
• Atchafalaya Basinkeeper v. Chustz, 682 F.3d 356 (5th Cir. 2012) & Harmon Cove Condo. Ass’n v. Marsh, 815 F.2d 949 (3d Cir. 1987)
  Addressed whether citizen suits may enforce §404 permits. Cited chiefly in the concurrence; majority did not decide the question but relied on their reasoning when interpreting waiver.

4.2 Court’s Legal Reasoning

1. Waiver Doctrine Limited
   • Waiver must be “voluntary, intentional relinquishment of a known right.”
   • Textual context of the PJD indicates waiver targets Corps enforcement, not citizen suits.
   • Contract-law analogy: Non-party citizens cannot enforce the “agreement” embedded in the PJD.
   • Judicial-estoppel argument rejected; intervening change by Sackett precludes “mockery of justice” concerns.
2. Pleading Requirements After Sackett
   • Plaintiffs must allege: (i) the adjacent water is itself a WOTUS; and (ii) continuous surface connection rendering wetland “indistinguishable.”
   • Maps showing roads and uplands severing the wetland, reliance on buried pipes/culverts, or past tidal exchange are insufficient.
   • Conclusory statement that an area is a WOTUS is disregarded under Iqbal/Twombly.

4.3 Potential Impact of the Judgment

The decision is poised to influence CWA litigation in three principal ways:

1. Pleading Strategy for Environmental Plaintiffs
   Complaints must now incorporate site-specific topography, hydrological data, and photographs or expert assertions explicitly describing an uninterrupted surface-water link. Boilerplate allegations will invite dismissal.
2. Defense Toolkit for Landowners
   Defendants can wield Sackett offensively via Rule 12(b)(6), eliminating costly discovery. PJDs will no longer be assumed to bar jurisdictional defenses in private suits.
3. Regulatory & Permitting Practice
   Corps and EPA may face increased requests for approved JDs (which are judicially reviewable) as stakeholders seek certainty. Conversely, NGOs will likely press agencies to tighten factual findings in permit verifications.

Complex Concepts Simplified

• Waters of the United States (WOTUS): A term defining which waters fall under federal CWA jurisdiction. Post-Sackett, wetlands are covered only if one can’t see where the wetland ends and the navigable water begins.
• Preliminary Jurisdictional Determination (PJD): An advisory Corps letter telling a landowner it may have jurisdictional waters. Faster, but not binding; can contain waivers.
• Nationwide Permit (NWP): A pre-authorized blanket permit allowing specified categories of minor activities with minimal individual review—here, NWP 39 for commercial development.
• Citizen Suit (§1365): A private enforcement mechanism; citizens step into EPA/Corps shoes to sue polluters, but only for the violations Congress listed in §1365(f).
• Continuous Surface Connection: Physical, unbroken water linkage—not occasional flow through ditches or pipes—between a wetland and a traditional navigable water.

Conclusion

The Eleventh Circuit’s decision adds teeth to the Supreme Court’s Sackett pronouncements by translating them into a pleading-stage filter. Environmental plaintiffs must marshal concrete hydrological facts, while defendants gain a potent early-dismissal weapon. Equally significant is the Court’s narrowing of waiver language in PJDs, ensuring that property owners do not forfeit jurisdictional defenses merely by seeking permitting relief. Together, these holdings recalibrate the balance between development certainty and citizen enforcement in Southeastern wetlands—and likely beyond.