4th Circuit's 'Nexus' Ruling May Give Limited Boost To EPA's 'Waters' Rule

摘要

A federal appeals court ruling upholding a Clean Water Act (CWA) "significant nexus" jurisdictional finding is a win for EPA as it mirrors the jurisdictional approach in the agency's pending rule to define the law's reach, but the ruling may have limited impact because it is unpublished and could be reversed at rehearing or by the Supreme Court. The ruling by the U.S. Court of Appeals for the 4th Circuit in Precon Development Corporation, Inc. v. U.S. Army Corps of Engineers found that the Corps adequately demonstrated the significance of the effect of 4.8 acres of wetlands in Virginia's Northwest River region, when "aggregated," or considered in combination, with other "similarly situated" wetlands in the area. The ruling is available on InsideEPA.com. See page 2 for details. (Doc ID: 180295) Sources say the decision could potentially give the administration substantial leeway in the evidentiary threshold it must meet to show significance, particularly in the case of aggregated similarly situated wetlands - even absent a final CWA jurisdiction rule. "Maybe we don't need it - at least in the 4th Circuit," one legal source says.