Precon Development Corp. v. United States Army Corps of Engineers
633 F.3d 278
| 4th Cir. | 2011Background
- Precon developed 658-acre Edinburgh PUD in Chesapeake, VA with wetlands totaling 166 acres; Corps previously permitted filling 77 acres of wetlands 2004–2006 based on assumed overall development limits.
- Precon sought a jurisdictional determination and a CWA permit for Site Wetlands (4.8 acres) seven miles from navigable waters; Corps asserted jurisdiction based on waters of the United States adjacent to a ditch.
- Rapanos Guidance (June 2007) instructed a significant nexus approach; the Norfolk District remanded jurisdiction for reconsideration.
- Corps conducted a Significant Nexus Determination aggregating 448 acres of wetlands (Site Wetlands + 161 acres on-site + 282 adjacent acres) and found a nexus to the Northwest River.
- District Court granted summary judgment for Corps; on appeal, Fourth Circuit vacated and remanded for reconsideration due to an inadequate administrative record and potential overbroad aggregation.
- Court emphasizes need for concrete evidence showing a significant nexus when wetlands are distant from navigable waters.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 448-acre aggregation was permissible as 'similarly situated' wetlands. | Precon: aggregation is impermissible if wetlands are not truly similar. | Corps: guidance allows aggregation of similarly situated lands; distances and berms do not bar similarity. | Aggregation upheld, but remanded for better justification. |
| Whether the record adequately supports a 'significant nexus' to the Northwest River. | Record lacks measures showing significance; wetlands seven miles away cannot affect navigable waters. | Kennedy's significant nexus test allows qualitative evidence of nexus. | Record insufficient to show significant nexus; remand for additional evidence. |
| What deference applies to the Corps' interpretation and application of Kennedy's test. | EPA/Corps guidance should be reviewed with Skidmore deference. | Agency reasoning deserves deference; record governs. | The court applies Skidmore deference; remand for further factual development. |
Key Cases Cited
- Riverside Bayview Homes, Inc. v. United States, 474 U.S. 121, 474 U.S. 121 (1985) (wetlands adjacent to navigable waters within CWA jurisdiction)
- SWANCC v. United States Army Corps of Engineers, 531 U.S. 159, 531 U.S. 159 (2001) (isolated ponds not connected to navigable waters lack jurisdiction)
- Rapanos v. United States, 547 U.S. 715, 547 U.S. 715 (2006) (significant nexus test; plurality/kennedy framework for wetlands jurisdiction)
- Cundiff, United States v. Cundiff, 555 F.3d 200, 555 F.3d 200 (6th Cir. 2009) (significant nexus evidence need not be quantitative; qualitative evidence acceptable)
- Northern California River Watch v. City of Healdsburg, 496 F.3d 993, 496 F.3d 993 (9th Cir. 2007) (evidence of downstream water quality changes supports nexus)
- United States v. Mead Corp., 533 U.S. 218, 533 U.S. 218 (2001) (judicial deference to agency interpretations lacking Chevron step-0/0 formal rulemaking)