Posted By: Dwight Merriam, Robinson & Cole, LLP
Do you recall the U.S. Supreme Court’s Rapanos decision in 2006 in which the Court split 4-1-4 on the extent of the federal government’s jurisdiction over wetlands under the Clean Water Act? That odd split, with Kennedy in the middle, left at least two possible tests for determination of jurisdiction and uncertainty that remains today.
The United States Court of Appeals, Fourth Circuit, on January 25th, handed down its decision in Precon Development Corporation Inc. the United States Army Corps of Engineers clearly showing how unclear the jurisdictional issue remains. http://pacer.ca4.uscourts.gov/opinion.pdf/092239.P.pdf
The whole doctrinal disaster brings back fond memories the former Secretary of Defense Donald Rumsfeld, who famously said:
As we know,
There are known knowns.
There are things we know we know.
We also know
There are known unknowns.
That is to say
We know there are some things
We do not know.
But there are also unknown unknowns,
The ones we don’t know
We don’t know.
I do miss him.
The Precon case arose over a dispute as to whether 4.8 acres of wetlands 7 miles from the nearest navigable water was subject to jurisdiction by the U.S. Army Corps of Engineers under the Clean Water Act. The Corps claimed jurisdiction and denied Precon’s application to impact the wetlands through development. Precon appealed and the federal district court granted summary judgment to the Corps upholding the Corps’ jurisdiction and permit denial.
Precon appealed the Corps’ jurisdictional determination and the Fourth Circuit vacated the District Court’s grant of summary judgment and remanded the case back to the District Court with instructions to remand the matter back to the Corps for reconsideration of its jurisdiction over the wetlands.
Precon is the developer of the 650-acre planned unit development known as Edinburgh in Chesapeake, Virginia. Between 2004 and 2006, Precon received Corps approval to fill 77 acres of wetlands for the development.
Precon later decided to develop 10 additional residential lots in Edinburgh, development that required impacting another 4.8 acres of wetlands. The Corps was not happy about Precon’s piecemealing the application by adding additional land. Precon said the Corps didn’t have jurisdiction over the 4.8 acres; the Corps said it did; and the issue was joined.
The wetlands in question are next to a man-made drainage ditch that is 2,500 feet long, dug through wetlands with the dredge materials thrown up on the side creating a berm between the ditch and the 4.8 acres of wetlands.
Water in the ditch flows seasonally from late winter to early spring and connects with a perennial drainage ditch about 900 feet downstream from the site. That ditch runs along the boundary of the development for about 3,000 feet until it reaches a second perennial tributary 2 ½ to 3 miles south of the Edinburgh development. From there the merged tributaries flow into the Northwest River 3 or 4 miles downstream.
The Fourth Circuit accepts Kennedy’s “significant nexus” test as controlling in this case. The court’s analysis of the significant nexus determination takes several pages in the decision.
Interestingly, the Fourth Circuit decided that it should “treat compliance with Justice Kennedy’s ‘significant nexus’ test as a question of law, as we do any question of statutory interpretation, and review for compliance de novo…. However, recognizing the Corps’ expertise in administering the CWA, we give deference to its interpretation and application of Justice Kennedy’s test where appropriate.”
The court decided that the significant nexus test “does not require laboratory tests or any particular quantitative measurements in order to establish significance.” Interpreting Kennedy’s test, the court said that “he clearly intended for some evidence of both a nexus and its significance to be presented. Otherwise, it would be impossible to engage meaningfully in an examination of whether a wetland had ‘significant’ effects or merely ‘speculative or insubstantial’ effects on navigable waters.”
The court decided: “The question is thus whether the Corps’ record contained enough physical evidence -quantitative or qualitative – to allow us to uphold its determination that a significant nexus existed here.”
The court found that the record did not appear to contain any measurements of actual flow and that “even if the record had sufficiently documented flow, we do not believe that recitation of the flow of an adjacent tributary alone, absent any additional information regarding its significance, would necessarily suffice to establish a significant nexus…. Accordingly, we must conclude that this record does not support the Corps’ determination that the nexus that exists between the 448 acres of similarly situated wetlands and the Northwest River is ‘significant.’”
And so, case goes back to the trial court and from there back to the Corps.
What a mess the Rapanos decision has left all of us.