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

ELR Citation: 45 ELR 20049
Nos. 13-2499, (4th Cir., 03/10/2015)

The Fourth Circuit, in an unpublished opinion, affirmed a lower court decision upholding the U.S. Army Corps of Engineers' conclusion that it has jurisdiction over wetlands on a developer's property. The developer wanted to fill 4.8 acres of wetlands in order to build 10 homes. The wetlands are located in a larger geographic region encompassing 448 acres of similarly situated wetlands. The appellate court previously held that the Corps adequately established a nexus between the 448-acre wetlands and the Northwest River in Virginia. But it remanded the case because the Corps' administrative record lacked evidence of significance. On remand, the Corps expanded its administrative record and again concluded that it had jurisdiction. A lower court affirmed, and the developer appealed, arguing that the Corps' administrative record still fails to show a significant nexus. The court disagreed. The record now shows that the Northwest River is vulnerable because it is impaired from low dissolved oxygen. It also demonstrates that phosphorus and nitrogen are both nutrients, and an overabundance of nutrients causes low dissolved oxygen. Filling the wetlands would prevent them from trapping nitrogen, which in turn would exacerbate the Northwest River's dissolved oxygen deficiency by adding nitrogen to the river's already elevated phosphorus levels. Evidence of flooding also supports the Corps' contention that the wetlands' functions of storing water and slowing flow are significant. And the Corps also documented that the wetlands perform beneficial functions for food-chain support and wildlife. The court, therefore, affirmed the lower court's grant of summary judgment to the Corps.