UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2499
PRECON DEVELOPMENT CORPORATION, INCORPORATED,
Plaintiff − Appellant,
v.
UNITED STATES ARMY CORPS OF ENGINEERS,
Defendant − Appellee.
−−−−−−−−−−−−−−−−−−−−−−−−
ROBERT B. ATKINSON; KIRK J. HAVENS; CARLTON H. HERSHNER,
JR.; JAMES PERRY; DANIEL L. TUFFORD; JOY B. ZEDLER,
Amici Supporting Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, Chief
District Judge. (2:08-cv-00447-RBS-TEM)
Argued: December 10, 2014 Decided: March 10, 2015
Before SHEDD, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished opinion. Judge Diaz wrote the opinion,
in which Judge Shedd and Judge Floyd joined.
ARGUED: Douglas E. Kahle, WOLCOTT RIVERS GATES, Virginia Beach,
Virginia, for Appellant. Mary Gabrielle Sprague, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON
BRIEF: Glen M. Robertson, WOLCOTT RIVERS GATES, Virginia Beach,
Virginia, for Appellant. Sam Hirsch, Acting Assistant Attorney
General, Katherine W. Hazard, Environment & Natural Resources
Div., Appellate Section, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee. Deborah M. Murray, SOUTHERN
ENVIRONMENTAL LAW CENTER, Charlottesville, Virginia; Jan Goldman
Carter, NATIONAL WILDLIFE FEDERATION, Washington, D.C., for
Amici Curiae.
Unpublished opinions are not binding precedent in this circuit.
2
DIAZ, Circuit Judge:
This appeal is the latest installment in a thirteen-year
battle between Precon Development Corporation and the U.S. Army
Corps of Engineers about whether the Corps has jurisdiction
under the Clean Water Act over Precon’s Edinburgh development 1 in
Chesapeake, Virginia. This episode involves 4.8 acres of
wetlands that Precon wants to fill to build ten homes. The
Corps asserted jurisdiction over these wetlands and denied
Precon’s permit application. 2 We previously remanded this case
after concluding that the Corps had not provided sufficient
evidence to support its jurisdiction. Finding that the Corps
has now amassed adequate evidence, we affirm.
I.
Our opinion in Precon Development Corp. v. U.S. Army Corps
of Engineers (Precon I), 633 F.3d 278 (4th Cir. 2011), provides
a detailed account of the law and facts of this case. We
briefly recap here only what is necessary to resolve the current
appeal.
1
Edinburgh is a “planned unit development” that “contains
shopping centers, a light industrial complex, and residential
homes in several neighborhoods.” Appellant’s Br. at 3.
2
Precon has not challenged the denial of its permit
application in its appeals to this court.
3
In Precon I, we found that the applicable law for
evaluating the Corps’ assertion of jurisdiction over Precon’s
wetlands was the significant nexus test from Justice Kennedy’s
opinion concurring in the judgment in Rapanos v. United States,
547 U.S. 715 (2006). 3 When wetlands, such as Precon’s, are
adjacent to tributaries of traditional navigable waters, the
Corps must make a case-specific showing that a “‘significant
nexus’ exists ‘between the wetlands in question and navigable
waters in the traditional sense.’” Precon I, 633 F.3d at 288
(quoting Rapanos, 547 U.S. at 779, 782 (Kennedy, J., concurring
in the judgment)). A significant nexus exists when “the
wetlands, either alone or in combination with similarly situated
lands in the region, significantly affect the chemical,
physical, and biological integrity of” traditional navigable
waters. Id. at 289 (quoting Rapanos, 547 U.S. at 780). No
significant nexus exists when the “wetlands’ effects on water
quality [of traditional navigable waters] are speculative or
insubstantial.” Id. (quoting Rapanos, 547 U.S. at 780).
3
We are bound by Precon I’s statement of the applicable law
under the law of the case doctrine. See TFWS, Inc. v. Franchot,
572 F.3d 186, 191 (4th Cir. 2009) (“[O]nce the decision of an
appellate court establishes the law of the case, it ‘must be
followed in all subsequent proceedings in the same case in the
trial court or on a later appeal . . . .’”) (quoting United
States v. Aramony, 166 F.3d 655, 661 (4th Cir. 1999)).
4
Here, the relevant geographic region encompasses 448 acres
of similarly situated wetlands, including Precon’s 4.8 acres.
We previously upheld this aggregation. Id. at 293. The
relevant traditional navigable water is the Northwest River.
The path from the wetlands to the river is as follows: Precon’s
4.8 acres are adjacent to a 2,500-foot long man-made drainage
ditch. The 2,500-foot Ditch connects to the Saint Brides Ditch. 4
About three miles downstream, the Saint Brides Ditch joins
another tributary. Together, these tributaries form a channel
that flows into the Northwest River. The distance from the 4.8
acres to the Northwest River is about seven miles. 5
During our first review of this case, we found that the
Corps adequately established a nexus between the 448-acre
wetlands and the Northwest River. Id. at 295 & n.14. But we
nonetheless remanded because the Corps’ administrative record
lacked evidence of significance. Id. at 295.
We identified two deficiencies in the administrative
record. First, while the record contained evidence of water
storage capacity and potential flow rates, it lacked any
4
The Corps considered the 2,500-foot Ditch and the Saint
Brides Ditch collectively as the relevant “tributary” to which
the 448 acres of similarly situated wetlands are adjacent. We
approved this appellation in Precon I. 633 F.3d at 292.
5
An aerial map of the region appears in the appendix to
this opinion.
5
information as to actual flow. Id. at 294. Second, we noted
that although the record showed that “the wetlands and their
adjacent tributaries trap sediment and nitrogen and perform
flood control functions,” the record was silent on whether “the
Northwest River suffers from high levels of nitrogen or
sedimentation, or it if is ever prone to flooding.” Id. at 295.
On remand, the Corps expanded its administrative record and
again concluded that it had jurisdiction. Precon appealed this
conclusion administratively and then to the district court. The
district court granted the Corps’ motion for summary judgment,
and Precon appealed.
We review de novo the district court’s grant of summary
judgment. Id. at 289. We also review de novo the Corps’
compliance with the significant nexus test, but apply Skidmore 6
deference to the extent that the Corps’ interpretation of the
test is persuasive. Precon I, 633 F.3d at 289-90, 291, 296. We
defer to the Corps’ factual findings unless they are “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” Id. at 292 (quoting 5 U.S.C.
§ 706(2)(A)).
6
Skidmore v. Swift, 323 U.S. 134 (1944).
6
II.
Precon argues that the Corps’ administrative record still
fails to show a significant nexus between the wetlands in
question and the Northwest River. We disagree.
A.
Before evaluating the new evidence of significance, we
begin with some general observations that inform our approach to
this case. First, the significant nexus test is a “flexible
ecological inquiry.” Id. at 294 (citing Rapanos, 457 U.S. at
799-80). Quantitative or qualitative evidence may support the
Corps’ jurisdiction. Id. at 294. Thus, we find unpersuasive
Precon’s repeated argument that the Corps cannot meet its burden
because the 448-acre wetlands make up a small percentage of the
Northwest River watershed. As the Corps points out, this would
destroy the Corps’ jurisdiction through “death by a thousand
cuts.” Appellee’s Br. at 54.
Second, Precon relies heavily on the report of one of its
experts, Dr. Lawrence B. Cahoon, in which he opined that none of
the wetlands’ functions has a significant effect on the
Northwest River. However, Dr. Cahoon framed significance as
something approaching statistical significance. This sets the
bar too high, as purely qualitative evidence may satisfy the
significant nexus test.
7
Third, although we evaluate the functions of the wetlands
individually, the ultimate inquiry is whether the collective
effect of these functions is significant. In Precon I, we
approved of the Corps’ holistic approach to its jurisdictional
determinations. 633 F.3d at 283 (describing the Corps’ process
as first “assessing the flow characteristics and functions” of
the tributary and adjacent wetlands and then “evaluat[ing]
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” (internal
quotation marks omitted)).
Lastly, the Clean Water Act’s purpose is “to restore and
maintain the chemical, physical, and biological integrity of the
Nation’s waters.” 33 U.S.C. § 1251(a) (2012) (emphasis added).
As the district court observed, this case falls into the
maintenance category because it is a permitting case, not a
civil enforcement action. That informs the type of evidence a
reviewing court can expect the Corps to submit. In a civil
enforcement action, the damage has been done because the
wetlands have already been filled. In the permitting context,
however, the Corps exercises its jurisdiction to prevent damage
and thus cannot be expected to present evidence of the actual
ecological impact of the wetlands on downstream waters.
8
B.
We first consider the Corps’ new evidence on tributary flow
measurements. The administrative record now contains the City
of Chesapeake’s flow rate calculations and evidence from the
Corps’ April and August 2012 site visits.
No government agency has placed flow gauges in the 2,500-
foot Ditch, the Saint Brides Ditch, or the Northwest River. But
the City of Chesapeake has calculated positive flow rates from
two-year, ten-year, and fifty-year storm events 7 at three
locations: the intersection of the 2,500-foot Ditch and the
Saint Brides Ditch, in the Saint Brides Ditch 2,250 feet
downstream from that intersection, and at the farthest point
downstream where the Saint Brides Ditch and the 448-acre
wetlands are adjacent. 8 The City of Chesapeake relies on these
calculations to manage storm waters.
7
By this hydrologists mean the probability of a certain-
size storm occurring during a given year. Thus, a two-year
storm event has a 1 in 2 (or 50%) chance of occurring in a given
year. A fifty-year storm event has a 1 in 50 (or 2%) chance of
occurring in a given year. See Floods: Recurrence Intervals and
100-year Floods, U.S. Geological Survey,
http://water.usgs.gov/edu/100yearflood.html (last updated Nov.
12, 2014) (saved as ECF opinion attachment).
8
The particulars are as follows: At the intersection of the
2,500-foot Ditch and the Saint Brides Ditch, the flow rate is 24
cubic feet per second (cfs), 58 cfs, and 84 cfs for two-year,
ten-year, and fifty-year storm events, respectively. In the
Saint Brides Ditch 2,250 feet downstream, the respective flow
rates are 28 cfs, 60 cfs, and 89 cfs. At the end point where
(Continued)
9
In addition to flow rate calculations, the record now
contains photographs documenting the Corps’ site visits and
showing flow in the Saint Brides Ditch. In April 2012, Corps
personnel observed flow in the Saint Brides Ditch where it
crosses Saint Brides Road, which is downstream of the
intersection of the 2,500-foot Ditch and the Saint Brides Ditch.
The Corps has explained that this crossing is “the closest
downstream observation point.” J.A. 53.
In August 2012, Corps personnel again visited the area and
observed obvious flow in the Saint Brides Ditch where it crosses
Saint Brides Road. The Corps did not observe flow at the
intersection of the 2,500-foot Ditch and the Saint Brides Ditch,
but explained this as “likely the result of debris forming a
dam” somewhere between the intersection with the 2,500-foot
Ditch and the Saint Brides Road crossing point. Id.
One of Precon’s experts, Chester James Cahoon, III,
observed no measurable flow at the intersection of the 2,500-
foot Ditch and the Saint Brides Ditch during biweekly site
visits from mid-September to mid-December 2011. But the Corps
found the evidence gathered during its own site visits and the
the Saint Brides Ditch is adjacent to the 448-acre wetlands, the
respective flow rates are 93 cfs, 241.4 cfs, and 376 cfs. A
flow of 1 cfs “is about 450 gallons per minute.” Floods:
Recurrence Intervals and 100-year Floods, supra n.7.
10
City of Chesapeake’s flow rate calculations to be more reliable
because the region experienced lower than normal rainfall from
October to December 2011. Mr. Cahoon himself noted the “below
normal” precipitation during this time period. J.A. 460.
Because the Corps’ decision to credit certain evidence in the
record over other conflicting evidence is neither arbitrary nor
capricious, we defer to the Corps’ factual finding on this
point. See 5 U.S.C. § 706(2)(A).
In sum, the Corps has improved on its earlier record, which
was limited to evidence of water storage capacity and potential
flow rates. However, tributary flow alone cannot establish
jurisdiction, so we now consider the Corps’ new evidence on the
significance of the wetlands’ functions.
C.
The wetlands perform three functions that relate to the
condition of the Northwest River: they trap nitrogen, store
water, and slow water flow to the river. We earlier found the
record deficient because it lacked any information about the
river’s condition. Now, the Corps’ administrative record
includes three new reports on this subject. These reports--the
January 2011 “Total Maximum Daily Load Development for the
Northwest River Watershed, A Total Phosphorous TMDL Due to Low
Dissolved Oxygen Impairment”; the March 2010 “City of
Chesapeake: A Plan for the Northwest River Watershed”; and the
11
Virginia Department of Environmental Quality’s “Final 2010
305(b)/303(d) Water Quality Assessment Integrated Report” (the
“Integrated Report”)--conclusively establish that the Northwest
River suffers from low dissolved oxygen. In particular, the
Integrated Report shows that the river suffers from this
impairment at the point where it connects to the Saint Brides
Ditch.
According to these reports, dissolved oxygen is one of the
most important measures of water quality for aquatic life, and
one characteristic of nutrient-rich streams is low dissolved
oxygen. The two most important nutrients in Virginia’s rivers
are nitrogen and phosphorous. Recent testing on the Northwest
River showed elevated phosphorous levels, and state
environmental agencies have adopted a plan to reduce phosphorous
in the river.
Precon contends that the wetlands’ nutrient-trapping
function is irrelevant because the Northwest River has elevated
phosphorous, not nitrogen, levels. This argument misses the
point. The record now, unlike before, shows that the Northwest
River is vulnerable because it is impaired from low dissolved
oxygen. It also demonstrates that phosphorous and nitrogen are
both nutrients, and an overabundance of nutrients causes low
dissolved oxygen. Filling the wetlands would prevent them from
trapping nitrogen, which in turn would exacerbate the Northwest
12
River’s dissolved oxygen deficiency by adding nitrogen to the
river’s already elevated phosphorous levels.
Additionally, the record now shows that the Northwest River
has flooded twice in the past fifteen years. And the record
contains evidence of flooding in a subdivision across the Saint
Brides Ditch from Precon’s development. While not particularly
compelling in isolation, this evidence of flooding further
bolsters the Corps’ contention that the wetlands’ functions of
storing water and slowing flow are significant.
D.
The Corps has also documented that the wetlands perform
beneficial functions for food-chain support and wildlife.
Specifically, the Corps determined that fish in “the Northwest
River located downstream from the subject wetlands benefit from
the carbon sequestration occurring in the subject wetlands.”
J.A. 367. 9
9
Carbon sequestration occurs when
vegetation takes in carbon dioxide (CO2) from the
atmosphere as part of the photosynthesis process and the
carbon is incorporated in the vegetation biomass. Carbon,
which is a component of organic material such as leaves, is
also important because it provides food for the bottom
level of the food chain, which in turn supports higher
trophic species such as fish in downstream waters . . . .
J.A. 367.
13
One of Precon’s experts, Dr. Lawrence B. Cahoon, offered a
contrary opinion, which the Corps considered and rejected. In
doing so, the Corps relied on other evidence that headwater
wetlands and streams, like the 448-acre wetlands, 2,500-foot
Ditch, and Saint Brides Ditch, can be “important sources” of
organic matter. J.A. 49. And the Corps noted that the 448-acre
wetlands, the 2,500-foot Ditch, and the Saint Brides Ditch are
mostly wooded, and trees and their leaves contribute organic
matter for carbon sequestration. Once again, we defer to the
Corps’ factual finding on this issue.
In addition, the Corps found that the 448-acre wetlands
provide a habitat for species such as “deer, squirrels,
songbirds, reptiles, and amphibians.” J.A. 368. The Corps also
had evidence from the Virginia Department of Conservation and
Recreation and its own site visits that an endangered species of
rattlesnake inhabits the wetlands. And the Department
documented endangered eastern big-eared bats nearby.
Dr. Cahoon, on the other hand, did not see any fish, wading
birds, fish-eating birds, water fowl, or aquatic mammals when he
visited the area on February 4, 2012. But the Corps again found
Dr. Cahoon’s observations unpersuasive based on its own August
2012 visit during which fish were observed in the 2,500-foot
Ditch where it intersects with the Saint Brides Ditch, and the
undisputed evidence that the wetlands are a habitat for non-
14
aquatic mammals. The Corp’s decision to reject Dr. Cahoon’s
finding was within its discretion, especially given that cold
temperatures and low rainfall in February 2012 made the region
unappealing to fish.
III.
For the above reasons, we hold that the Corps has satisfied
its obligation on remand to marshal evidence in support of its
decision to assert jurisdiction over the disputed wetlands.
Consequently, the district court’s grant of summary judgment to
the Corps is
AFFIRMED.
15
APPENDIX
J.A. 36.
16