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Precon Development Corp. v. United States Army Corps of Engineers

ELR Citation: 41 ELR 20071
Nos. No. 09-2239, (4th Cir., 01/25/2011)

The Fourth Circuit reversed and remanded a lower court decision upholding the U.S. Army Corps of Engineers' conclusion that it had jurisdiction over wetlands on a developer's property. The Corps permissibly defined the scope of its review area as including 448 acres of similarly situated wetlands. But the record does not support the Corps' determination that the nexus that exists between the 448 acres of similarly situated wetlands and a navigable river seven miles away is "significant." Because the case involves wetlands adjacent to two man-made ditches flowing at varying and largely unknown rates toward a river seven miles away, the court could not accept, without any information on the river's condition, the Corps' conclusion that the nexus here is significant and supported by substantial factual findings. It noted that in cases like this one, involving wetlands running alongside a ditch miles from any navigable water, the Corps should pay particular attention to documenting why such wetlands significantly, rather than insubstantially, affect the integrity of navigable waters. Such documentation need not take the form of any particular measurements, but should include some comparative information that allows the court to meaningfully review the significance of the wetlands' impacts on downstream water quality.