Earlier this month, the Fourth Circuit deferred to the decision of the U.S. Army Corps of Engineers that wetlands in Chesapeake, Virginia have a "significant nexus" to a river approximately seven miles away, and therefore are subject to restrictions against filling wetlands.  Precon Development Corp., Inc. v. U.S. Army Corps of Engineers, No. 13-2499 (4th Cir. March 10, 2015).  The unpublished decision followed a 13-year odyssey by Precon Development Corporation in its attempt to develop property that includes 4.8 acres of wetlands separated by a berm from a larger wetland.

Precon appealed the lower court's grant of summary judgment to the Corps on the issue of the Corps' jurisdiction over the wetlands under the federal Clean Water Act (CWA).  Prior rulings noted that the 4.8-acre wetland is adjacent to a 448-acre wetland, both of which are connected through ditches to a river that is a traditional navigable water under the CWA.  Breaches in the berm between the two wetlands allow water to move from one wetland to the other and natural drainage ways from the wetlands to the river were replaced by deeper, wider ditches. 

The Fourth Circuit had previously held that the ditches between the wetlands and the river constitute "tributaries" that create a nexus between the wetlands and the river. The Fourth Circuit had remanded the case to the district court for a determination of whether the nexus is sufficiently "significant" between the wetlands and the river to subject the wetlands to federal regulation.  A "significant nexus" is the touchstone established by the U.S. Supreme Court in Rapanos v. United States, 547 U.S. 715 (2006) in Justice Kennedy's opinion for identification of wetlands subject to federal jurisdiction under the Clean Water Act.  A significant nexus is present "if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as 'navigable.'"  The Fourth Circuit also held that the adjacent 448-acre wetland should be aggregated with the 4.8 acre wetland in the evaluation of significance.  On remand, the district court held that a significant nexus had been demonstrated through additional information provided by the Corps and granted the Corps summary judgment.

In this month's decision, the Fourth Circuit reviewed the expanded record.  Although its review was de novo, the court applied the deference to administrative agency decisions set out in Skidmore v. Swift, 323 U.S. 134 (1944) accepting the Corps' factual findings unless they are arbitrary, capricious, an abuse of discretion, or contrary to law.  The court held that the size of the wetlands relative to the river's watershed is irrelevant and rejected significance based on the statistical significance of the effect of the wetlands on the river.  Calculated flow rates in the ditches that connect the wetlands to the river, the river's impairment for low dissolved oxygen, the wetlands' and ditches' function of reducing flooding and trapping substances that exacerbate low dissolved oxygen, and the wetlands' value as wildlife habitat were found to support the Corps' decision.