Rather than clarifying how to determine whether wetlands are subject to federal jurisdiction under the Clean Water Act (CWA), the Supreme Court’s 2006 decision in Rapanos v. United States, 547 U.S. 715, included multiple opinions which have caused even more confusion. The EPA and U.S. Army Corps of Engineers issued guidance on jurisdictional determinations after Raponos and there has been subsequent litigation over jurisdictional issues. Recently, in Precon Development v. U.S. Army Corps of Engineers, Civ. No. 09-2239 (4th Cir. Jan. 25, 2011), the Fourth Circuit joined other circuits by adopting Justice Kennedy’s “significant nexus test,” one of the opinions set forth in Rapanos. The Fourth Circuit seems to require a greater evidentiary showing to prove there is a “significant nexus” between the wetlands and navigable waterways. At issue in Precon Development are 4.8 acres of wetlands that are adjacent to a drainage ditch, located seven miles upstream from the nearest river. The Army Corps took the position that these wetlands were subject to CWA jurisdiction—using the EPA/Army Corps guidance published after the Rapanos decision—and that it could prohibit the landowner from dredging and filling the wetlands under Section 404 of the CWA. The court found that the evidence relied upon by the Army Corps was insufficient to establish the required nexus. Also, the court refused to give great deference to the EPA/Army Corps nonbinding guidance document because there was no notice-and-comment rulemaking. New “guidance” is expected to be issued by EPA/Army Corps in the near future, which is expected to expand CWA jurisdiction and spur more litigation.
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