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Precon Development Corp. v. United States Environmental Protection Agency

ELR Citation: 43 ELR 20273
Nos. 2:08cv447, (E.D. Va., 11/18/2013) (Smith, C.J.)

A district court held that the U.S. Army Corps of Engineers could exercise jurisdiction under the CWA over wetlands contained in a developer's proposed residential site. The developer had initially asked the court to enter declaratory judgment that the wetlands were not subject to federal jurisdiction and, in the alternative, to set aside the Corps' permit denial and direct the Corps to issue a permit to allow the proposed activities. But the district court ruled in favor of the Corps, and the developer appealed. The U.S. Court of Appeals for the Fourth Circuit then reversed and remanded, holding that the record failed to support the Corps' determination that the nexus that exists between the wetlands and a navigable river seven miles away was "significant." On remand, the district court adopted the report and recommendation of a U.S. magistrate judge and ruled that the administrative record contained sufficient evidence, with more than an indicia of reliability, to support the Corps' finding. Evaluating the full record, including expert findings and conclusions to the contrary, the court held that the Corps' extensive factual findings supporting its significant nexus determination were not arbitrary and capricious, and that the Corps' ultimate determination that the relevant wetlands have a significant nexus to a navigable water was highly persuasive.