Courts Still Struggling With Reach of Clean Water Act

April 2011Newsletters In the Zone

On January 25, 2011, the Fourth Circuit Court of Appeals handed down a decision examining the jurisdictional extent of the federal Clean Water Act. In Precon Development v. U.S. Army Corps of Engineers, No. 09-2239, the Appeals Court applied Supreme Court Justice Anthony Kennedy’s approach as established in his concurring opinion in Rapanos v. United States, 547 US 715 (2006), to determine when wetlands not adjacent to a navigable water are subject to review by the U.S. Army Corps of Engineers. Going beyond other circuit courts, the Fourth Circuit required a higher standard of evidence to establish a “significant nexus” and found the Corps did not build a sufficient record to establish its jurisdiction under the Clean Water Act.

Under the Rapanos plurality opinion, wetlands should only fall within Clean Water Act jurisdiction when they are adjacent to a “relatively permanent body of water connected to traditional interstate navigable waters” and have a “continuous surface connection with that water.” However, Justice Kennedy’s concurring Rapanos opinion laid out an alternate test. When the Corps of Engineers “seeks to regulate wetlands based on adjacency to nonnavigable tributaries,” it must establish that a “significant nexus” exists “between the wetlands in question and navigable waters in the traditional sense.” Thus, if the wetlands are not adjacent to a navigable waterway, there must be a case-by-case determination of jurisdiction focusing on this nexus.

At issue in Precon was whether the Corps had jurisdiction over 4.8 acres of wetlands adjacent to a drainage ditch and located seven miles upstream from the nearest river.

Applying Kennedy’s test, the court found that the Corps failed to establish the wetlands had a “significant nexus” to a traditionally “navigable waterway.” Neither Justice Kennedy nor the Corps have provided much guidance on precisely how to establish this nexus. Indeed, the Corps argued its arrival in determining a significant nexus was a factual conclusion based upon observational data. However, the Fourth Circuit disagreed and held the determination was not adequately supported by sufficient physical evidence to support the Corps’ conclusion.

In fact, the court observed the Corps’ own Rapanos Guidance Document cautions “[a]s the distance from the tributary to the navigable water increases, it will become increasingly important to document whether the tributary and its adjacent wetlands have a significant nexus rather than a speculative or insubstantial nexus with a traditional navigable water.”

In conducting its own detailed analysis of nexus, the court opted to evaluate not only the 4.8 acres at issue but also the 166 acres of wetlands contained in the entire development as well as 448 acres of “similarly situated” wetlands between the project site and the downstream navigable water.

In a broad sense, stakeholders should be concerned over the impact of evaluating such “similarly situated” wetlands within and surrounding their own projects as well as the implications of the court granting little deference to the Corps’ conclusions on the significant nexus issue.

For more information, please contact Robert W. Gundlach, Jr. at 215.918.3636 or [email protected].