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Over 13 years ago, a permit to fill 4.8 acres of wetlands and build a small development of 10 homes in Chesapeake, Virginia, about 7 miles from the Northwest River, was filed by Precon Development Corporation, and denied by the Army Corps of Engineers. Precon sued and the case had been in the courts since.

This past Monday, in an unpublished decision, the 4th Appeals Court upheld that the Corps was acting within its regulatory authority when determining that there was a significant nexus between the wetland in question and the Northwest River. The 10 dollar descriptor, "significant nexus" is the result of a 2006 Supreme Court case, Rapanos vs. United States. This places the the burden of proof on the Corps by requiring them to prove the wetland in question is connected to a navigable water, and can significantly affect its integrity.

In this case, the Corps proved there was a hydrological connection between the property and river, primarily by a series of ditches, and the filling or degradation of the wetland would negatively impact the river, already suffering the ill effects of low oxygen levels.

Wetland related cases as they apply under the Clean Water Act have been in and out court since it was passed in 1972, and will continue to do so. At the heart of the argument is an individuals or businesses right to property under the 5th Amendment, which can directly conflict with the larger societal goal of protecting clean water and fragile wetlands.

Further Reading and Sources:
Precon Development Appeal
Fourth Circuit upholds U.S. Army Corps of Engineers' finding of jurisdiction over 4.8 acres of wetlands in Chesapeake, Virginia