Wetlands Adjacent to Tributaries of Navigable are Jurisdiction of Clean Water Act, According to U.S. Court of Appeals

In a March 10, 2015, unpublished opinion, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit reversed its earlier decision and agreed with the district court to uphold the 2009 Clean Water Act (CWA) jurisdictional determination by the U.S. Army Corps of Engineers (USACE) for wetlands adjacent to a tributary of the Northwest River in southeastern Virginia1. Therefore, any dredge/fill disturbance would be subject to permitting under Section 404 of the CWA.

Precon Dev. Corp. v. U.S. Army Corps of Eng’rs, 4th Cir., 13-2499, unpublished opinion 3/10/15, upheld a determination made by USACE that jurisdiction exists by showing a significant nexus between 4.8 acres of wetlands, which Precon Development Corporation (Precon) owned, and a tributary of the Northwest River, a traditional navigable water.  Precon wants to fill the wetlands to build 10 homes as part of a larger planned residential development in Chesapeake, Virginia.  The court called upon USACE and the United States Environmental Protection Agency (USEPA) to establish jurisdiction over wetlands adjacent to tributaries of navigable waters by applying the significant nexus test on a case-by-case basis.

In their ruling, the appellate judges made it clear that USACE does not need quantitative or statistically significant evidence to demonstrate substantial nexus between waters and wetlands, and reiterated that they were aware the 4.8 acres of wetlands on Precon’s property were part of the 448 acres of similarly situated wetlands in the region affecting the Northwest River.  Precon’s lead counsel plans to file for en banc hearing by March 24 to have the case reheard by the full court to review the three-judge panel decision.

According to Jan Goldman-Carter, wetlands counsel for the National Wildlife Federation, the appellate ruling was significant because it rejected the notion that significant nexus has to be proved quantitatively.  Ms. Goldman-Carter said “The corps doesn’t have to show destruction associated with wetlands because the wetlands haven’t been destroyed. It’s enough to speak to the functions that these wetlands play, and how they impact the river system.”  She pointed to the opposition leveled by the home builders, developers, farmers, and miners against the recent attempt by the USEPA and the USACE to clarify CWA jurisdiction over wetlands and waters (79 Fed. Reg. 22,188) (RIN 2040–AF30), and that their rulemaking does not quantify what is meant by “significant nexus” between geographically isolated wetlands as well as similarly situated wetlands and downstream water bodies currently covered by the act (45 ER 995, 4/4/14).

USEPA’s Waters of the U.S. final rule is expected in April 2015.  EHS Support can help determine its implications for your company’s operations.

 

1Content provided by Amena Saiyid in the article, “Court Affirms Jurisdiction for Wetlands Adjacent to Tributaries of Navigable Waters,” published March 13, 2015, in Bloomberg BNA Environmental Report™

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