Friday, January 28, 2011

Precon Development Corporation v. US Army Corps

Jan 25: In the U.S. Court of Appeals, Fourth Circuit, Case No. 09-2239. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. As explained by the Appeals Court, the appeal arises out of a determination made by the Army Corps of Engineers (the Corps) that it has jurisdiction, under the Clean Water Act (CWA), over 4.8 acres of wetlands located on Precon Development Corporation's (Precon's) property, approximately seven miles from the nearest navigable water. The Corps subsequently denied Precon's application for a CWA permit to impact the wetlands through development.
    Precon appealed the determinations to the United States District Court for the Eastern District of Virginia under the Administrative Procedure Act (APA), 5 U.S.C. § 702, and the parties crossmoved for summary judgment. The district court granted
summary judgment to the Corps on September 4, 2009, upholding both its jurisdictional determination and its permit denial.
    On appeal, Precon challenged only the Corps' jurisdictional determination. The Appeals Court said, "Because we find the Corps' administrative record inadequate to support its conclusion that it had jurisdiction over Precon's wetlands, we vacate the district court's grant of summary judgment and remand to the district court with instructions to remand to the Corps for reconsideration of its jurisdiction over the wetlands in question."
    The Appeals Court explained further, ". . .we reverse the district court's holding that the Corps' administrative record adequately demonstrated that a significant nexus existed here, and remand to the Corps for reconsideration of its significant nexus determination. Cf. Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52, 57 (1983) (remanding for further agency consideration when the agency's view of the facts was accepted but the Court 'appreciate[d] the limitations of th[e] record in supporting the agency's decision'); Cook v. Heckler, 783 F.2d 1168, 1174 (4th Cir. 1986) (remanding for further consideration where it was 'impossible to conclude that there [was] substantial evidence to support the Secretary's determination'). In doing so, we do not intend to place an unreasonable burden on the Corps. We ask only that in cases like this one, involving wetlands running alongside a ditch miles from any navigable water, the Corps 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 us to meaningfully review the significance of the wetlands' impacts on downstream water quality."
    Access the complete opinion (click here).

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