The Fourth Circuit Court of Appeals has remanded a plan to develop a 4.8-acre site, which is part of a 657-acre parcel in Chesapeake, Virginia, to the U.S. Army Corps of Engineers (Corps) for a determination as to whether the Corps has jurisdiction over the site. Precon Dev. Corp., Inc. v. Corps, No. 09-2239 (4th Cir. 1/25/11). The appeals court reversed the grant of the Corps’ summary judgment motion by the U.S. District Court for the Eastern District of Virginia, which had upheld the Corps’ jurisdiction and its permit denial.
Citing Rapanos v. U.S., 547 U.S. 715 (2006), which limited government jurisdiction over wetlands, the three-judge appeals panel ruled that the Corps must conduct a more thorough analysis before determining whether it had jurisdiction over the site. In Rapanos, the U.S. Supreme Court, in a 4-1-4 decision, sufficiently clouded the jurisdiction analysis so that EPA and the Corps issued joint guidance in 2007, and again in 2008, to assist in the analysis of whether wetlands have a “significant nexus” with traditional navigable waters to allow the Corps to assert jurisdiction.
The case involved wetlands that ran alongside a ditch miles from any navigable water. According to the appeals court, the Corps must follow its own guidance and pay particular attention to documenting “why such wetlands significantly, rather than insubstantially, affect the integrity of navigable waters.” The court concluded that the Corps needed more information about the flow of the drainage ditches and the condition of the distant river to support its position.