633 F.3d 278 (4th Cir. 2011), 09-2239, Precon Development Corp., Inc. v. United States Army Corps of Engineers

Docket Nº09-2239.
Citation633 F.3d 278
Opinion JudgeDUNCAN, Circuit Judge:
Party NamePRECON DEVELOPMENT CORPORATION, INCORPORATED, Plaintiff-Appellant, v. UNITED STATES ARMY CORPS OF ENGINEERS, Defendant-Appellee. Chesapeake Bay Foundation; National Wildlife Federation; Natural Resources Defense Council, Amici Supporting Appellee.
AttorneyMark R. Baumgartner, Pender & Coward, PC, Virginia Beach, Virginia, for Appellant. Mary Gabrielle Sprague, United States Department of Justice, Washington, D.C., for Appellee. Douglas E. Kahle, Pender & Coward, PC, Virginia Beach, Virginia, for Appellant. Ignacia S. Moreno, Assistant Attorney Gen...
Judge PanelBefore SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Reversed and remanded by published opinion. Judge DUNCAN wrote the opinion, in which Judge SHEDD and Senior Judge HAMILTON joined.
Case DateJanuary 25, 2011
CourtUnited States Courts of Appeals, United States Court of Appeals (4th Circuit)

Page 278

633 F.3d 278 (4th Cir. 2011)

PRECON DEVELOPMENT CORPORATION, INCORPORATED, Plaintiff-Appellant,

v.

UNITED STATES ARMY CORPS OF ENGINEERS, Defendant-Appellee.

Chesapeake Bay Foundation; National Wildlife Federation; Natural Resources Defense Council, Amici Supporting Appellee.

No. 09-2239.

United States Court of Appeals, Fourth Circuit.

January 25, 2011

Argued: Oct. 28, 2010.

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[Copyrighted Material Omitted]

Page 280

ARGUED:

Mark R. Baumgartner, Pender & Coward, PC, Virginia Beach, Virginia, for Appellant.

Mary Gabrielle Sprague, United States Department of

Page 281

Justice, Washington, D.C., for Appellee.

ON BRIEF:

Douglas E. Kahle, Pender & Coward, PC, Virginia Beach, Virginia, for Appellant.

Ignacia S. Moreno, Assistant Attorney General, Katherine W. Hazard, Austin D. Saylor, Kent E. Hanson, Environmental & Natural Resources Division, Appellate Section, United States Department of Justice, Washington, D.C., for Appellee.

Deborah M. Murray, Southern Environmental Law Center, Charlottesville, Virginia; James G. Murphy, Ramya Sivasubramanian, Alex Phipps, National Wildlife Federation, Montpelier, Vermont; Jon Devine, Rebecca Hammer, Natural Resources Defense Council, Washington, D.C.; Jon A. Mueller, Chesapeake Bay Foundation, Annapolis, Maryland, for Amici Supporting Appellee.

Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Reversed and remanded by published opinion. Judge DUNCAN wrote the opinion, in which Judge SHEDD and Senior Judge HAMILTON joined.

OPINION

DUNCAN, Circuit Judge:

This 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" ), 33 U.S. C. § 1251 et seq., 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 these 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 cross-moved 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 challenges only the Corps' jurisdictional determination. 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.

I.

A.

Precon is the developer of a 658-acre Planned Unit Development known as Edinburgh (the " Edinburgh PUD" ), located in Chesapeake, Virginia. The city of Chesapeake is in southeastern Virginia, a region historically comprised of forested wetlands. Many of these wetlands ultimately drain into the Northwest River, which flows south through the region, passing within five to ten miles of the Edinburgh PUD.

The Edinburgh PUD is a mixed-use development that contains both residences and retail establishments. Its construction began in 2001. Precon acquired the Edinburgh PUD from RGM Corporation (" RGM" ), the initial developer, in 2003. Since 2003, Precon has pursued the development of several residential areas within the Edinburgh PUD. Between 2004 and 2006, the Corps granted Precon permits to fill 77 acres of wetlands in order to proceed with these developments, based in part on an understanding that this was the totality of the development planned for the Edinburgh PUD.

Page 282

In 2006, Precon announced a plan to develop ten additional residential lots in the Edinburgh PUD. The original plan for developing these lots required filling 10.7 acres of wetlands. However, after discussions with the Corps in which the Corps expressed its displeasure that Precon was separately pursuing additional residential development, Precon limited its proposed design so that it would only impact 4.8 acres of wetlands (the " Site Wetlands" ). Precon further suggested that it did not believe the Corps had jurisdiction over these 4.8 acres. The Corps disagreed.

A detailed explanation of the geography of the Site Wetlands is critical to understanding the parties' dispute. The Site Wetlands are in the southwest quadrant of the Edinburgh PUD and sit adjacent to a man-made drainage ditch approximately 2,500 feet long (the " 2,500-foot Ditch" ).1 The Site Wetlands do not, however, abut the 2,500-foot Ditch, because when the 2,500-foot Ditch was excavated through the surrounding wetlands in 1977, " [m]aterial excavated ... was side-cast on the east bank and therefore creates a berm between the [Site Wetlands] and the ditch." 2 J.A. 264.

The 2,500-foot Ditch, which flows seasonally— i.e., from late winter to early spring— joins a larger, perennial drainage ditch, the Saint Brides Ditch, approximately 900 feet downstream of the Site Wetlands. The Saint Brides Ditch runs along the western boundary of the PUD for approximately 3,000 feet before continuing to meet a second perennial tributary about two and one-half to three miles south of the Edinburgh PUD. These merged tributaries flow into the Northwest River approximately three to four miles downstream.

The 4.8-acre Site Wetlands comprise only a small portion of the total wetland acreage within the Edinburgh PUD. There are, in total, 166 acres of wetlands in the PUD that are part of the Northwest River watershed.3 The remainder of the 166 acres are concentrated along the western edge of the PUD and surround the 2,500-foot Ditch and the Saint Brides Ditch.

B.

In 2007, Precon applied to the Corps for a jurisdictional determination as to whether the Site Wetlands were covered by the CWA, such that a permit would be needed before they could be impacted by development. Precon further requested a permit to fill the Site Wetlands if the Corps determined that a permit was required under the CWA.

On May 31, 2007, the Corps determined that it had jurisdiction over the Site Wetlands, on the ground that the wetlands sat adjacent to a ditch which qualified as " waters of the United States." J.A. 202. It subsequently denied Precon's request for a CWA permit. Precon administratively appealed

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both determinations. Around this same time, the Corps and the Environmental Protection Agency (" EPA" ) jointly issued new guidance (the " Rapanos Guidance," issued June 5, 2007) on CWA jurisdiction following the Supreme Court's jurisdiction-limiting decision in Rapanos v. United States, 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006). In light of the Rapanos Guidance, a Corps appeals officer remanded the Corps' jurisdictional determination to the Corps' Norfolk District for reconsideration.

i.

The Rapanos Guidance instructs Corps and EPA personnel on how to make jurisdictional determinations that comply with the new rules for CWA jurisdiction announced by the Supreme Court in Rapanos. 4 The Guidance explains that post Rapanos, wetlands, such as the Site Wetlands, which are " adjacent to, but not directly abutting, a relatively permanent tributary ( e.g., separated from it by uplands, a berm, dike or similar feature)," are no longer automatically subject to the Corps' jurisdiction. J.A. 484. Pursuant to the Supreme Court's decision, the Rapanos Guidance instructs the Corps to evaluate such wetlands, along with " similarly situated" wetlands in the area, in order to determine whether they have a " significant nexus" with traditional navigable waters. Id. ; see also Rapanos, 547 U.S. at 780, 126 S.Ct. 2208.

The first step in evaluating whether a significant nexus exists, according to the Rapanos Guidance, is to determine the region to be evaluated for significance. To do so, the relevant tributary must first be identified. A " tributary" for these purposes is defined as " the entire reach of the stream that is of the same order (i.e., from the point of confluence, where two lower order streams meet to form the tributary, downstream to the point such tributary enters a higher order stream)." J.A. 486. The pertinent section of the relevant tributary is known as the " relevant reach." Id. at 261. The Corps must next identify all wetlands adjacent to the relevant reach. Together, the relevant reach and its adjacent wetlands constitute the area to be evaluated for a significant nexus with a traditional navigable water.

The Rapanos Guidance explains that such evaluation should focus on the flow and functions of the relevant reach and adjacent wetlands. It instructs the Corps to specifically consider " volume, duration, and frequency" of flow in the relevant reach, as well as hydrologic information, physical characteristics, and functions performed by the relevant reach and its wetlands. Id. at 487. The Guidance then instructs the Corps, " after assessing the flow characteristics and functions," to evaluate whether these factors " are likely to have an effect that is more than speculative or insubstantial on the chemical, physical, and biological integrity of a traditional navigable water." J.A. 487. It emphasizes that " [a]s the distance from the tributary to the navigable water increases, it will become increasingly important to document whether the tributary and its adjacent wetlands have a significant nexus rather than a speculative or insubstantial

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nexus with a traditional navigable water." Id.

ii.

Upon remand and application of this new guidance, the Corps upheld its finding of jurisdiction over the Site Wetlands. Because the Site Wetlands do not abut— but only sit adjacent to— the 2,500-foot Ditch, the Corps did not treat them as automatically...

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    ...United States v. Bailey , 571 F.3d 791 (8 th Cir. 2009) Kennedy / Silent on Plurality  4 th Circuit: Precon Development Corp. v. Corps, 633 F.3d 278 (4 th Cir. 2011)  7 th Circuit: United States v. Gerke Excavating, Inc. , 464 F.3d 723 (7 th Cir. 2006)  9 th Circuit: Northern California ......
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