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On March 24, 2015, the Fourth Circuit ended a 13-year battle between Precon Development Corp. Inc. and the Army Corps of Engineers over a proposed housing development in Virginia. (PRECON DEVELOPMENT CORPORATION, INC. v. UNITED STATES ARMY CORPS OF ENGINEERS)

The ruling hinged on whether there was a “significant nexus” between the proposed development and a nearby river. The “significant nexus” term was introduced by Justice Kennedy and limits the jurisdiction of the Clean Water Act to waters with a “significant nexus” to downstream navigable waters, and excludes more tenuous connections to hydrological conditions. In this case the court held that there was a significant nexus” due to a series of man-made ditches stretching 7 miles between the river and housing development, which were largely seasonal.

Not only does this case establish a much broader scope of what waters are properly included as “navigable” vs. “ephemeral” (and therefore outside the scope of the CWA), it also lent a great deal more deference to the Corps records and assertions than before. This is especially unusual as the Fourth Circuit is generally regarded as more conservative than its sister Circuit Courts.

For businesses and future developers this ruling will make it much more difficult to challenge the Corps’ denial of a permit. It also blurs the line between what hydrological connections are substantial enough to trigger CWA and Corps jurisdiction. Combined with the EPA and Corps’ proposed rule expanding the definition of “waters of the U.S.” to include nearly all wetlands and tributaries, this rule could herald a movement towards greater deference to agency authority and much broader definition of the Corps permitting authority.

Update provided by Mitchell Chadwick attorney Daniel J. Ashby.