• Is It or Is It Not a Water of the United States? A Complex Issue that Both Provides for Federal Jurisdiction and Bars Such a Jurisdiction Claim
  • May 20, 2015 | Author: Summer L. Nastich
  • Law Firm: Morris Polich & Purdy LLP - San Francisco Office
  • The court’s ruling in Precon Development Corp. Inc. v. Army Corps of Engineers, --- Fed. Appx. --- (2015) WL 1020693, helps to answer this question. The central issue before the court was whether the United States Army Corps of Engineers (ACOE) had sufficiently bolstered the administrative record to affirm taking jurisdiction over 4.8 acres of wetlands Precon Development Corp. (“Precon”) sought to fill in. For reasons outlined below, the Fourth Circuit concluded that ACOE had sufficiently bolstered the record with enough evidence to support its jurisdictional determination. In so doing, the court clarified and expanded what must be shown for the ACOE to establish a jurisdictional wetland under “significant nexus” test articulated in Justice Kennedy’s concurring opinion in Rapanos v. United States, 507 U.S. 715 (2006).