Fourth Circuit Offers Pyrrhic Victory On Corps Jurisdiction Over Developer's Clean Water Act Permit

The Fourth Circuit Court of Appeal case, Precon Development Corporation, Inc. v. U.S. Army Corps of Engineers, 2011 WL 213052 (C.A.4 (Va.)), arises out of a determination by the Army Corps of Engineers ("Corps") that it has jurisdiction, under the Clean Water Act ("CWA"), over 4.8 acres of wetlands located on the appellant owner's property, approximately 7 miles from the nearest navigable water. The Corps denied the owner's application for a CWA permit to develop the property, and the owner appealed to federal district court. The district court granted summary judgment to the Corps, upholding both its jurisdictional determination, and its permit denial. The owner appealed the district court's jurisdictional determination, and the Fourth Circuit Court of Appeal reversed, holding that the Corps' administrative record was inadequate to support its conclusion that it had jurisdiction over the wetlands. However, the court's ruling will not likely have a large impact on future CWA permit applications given its limited holding.

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Published In: Administrative Agency Updates, Environmental Updates, Residential Real Estate Updates, Zoning, Planning & Land Use Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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