January 26, 2011

A good decision from the Fourth Circuit dealing with Rapanos

By A good decision from the Fourth Circuit dealing with Rapanos

Author:  Damien M. Schiff

Today the Fourth Circuit Court of Appeals issued its decision in Precon Development Corp. v. United States Army Corps of Engineers.  The case concerned whether the Corps had jurisdiction over about 5 acres of wetlands on the plaintiff's property, located about 7 miles from the nearest navigable waterway in Chesapeake, Virginia.  The important takeaway points from the decision:

1.    The Corps' Rapanos Guidance is entitled to Skidmore, not Chevron, deference, meaning in practice that a court can disregard the Guidance if it doesn't find it persuasive.

2.    The Guidance's method for determining what constitutes "similarly situated wetlands" for purposes of Justice Kennedy's significant nexus test is reasonable and, as applied here, acceptable, although the court suggests that in the future the Corps take greater efforts to support its conclusions of interconnectedness.

3.    The determination of what constitutes a significant nexus (and thus which wetlands are jurisdictional) requires at least some quantitative or qualitative analysis of significance.  In other words, it's not enough for the Corps to prove that a group of wetlands affects to some degree the physical, chemical, and biological integrity of a downstream navigable waterway.  Rather, the Corps must prove that the effects are significant, i.e., not insubstantial or speculative.  In Precon, the court held that the Corps had failed to make this showing, because the record contained at most data merely describing the flow of adjacent tributaries/ditches, and no evidence of the significance of that flow in comparison to the downstream navigable waterbody.

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