March 31, 2015
Parker Moore , a Principal in Beveridge & Diamond's Washington, DC office, and a former wetlands ecologist, was quoted in an Environmental Law360 article titled "4th Circ. 'Nexus' Ruling Expands Deference To Army Corps." The article addresses the propriety of the Fourth Circuits decision to defer broadly to the U.S. Army Corps of Engineers' determination under the Clean Water Act (CWA) of when a wetland has a "significant nexus" to a downstream navigable waterway.
After describing the state of the federal law on this issue, Mr. Moore explained why he believes the Fourth Circuit incorrectly upheld the Corps' assertion of CWA jurisdiction over the landowner's wetlands:
"The court went to great lengths to defer to the Army Corps of Engineers, and the decision allows the Corps to justify jurisdiction over almost any wetland that has a hydrologic connection to a navigable waterway that is in any way impaired, and there are a great number of those.”
Mr. Moore further explained that the decision is contrary to the U.S. Supreme Court's position announced in Rapanos v. U.S and could pose significant implications for landowners.
"That says to me that the Corps is looking to establish jurisdiction through a hydrologic connection, which is something that the Rapanos court said is not permissible. But the court here allowed them to do it based on the fact that the navigable waterway is impaired and that it floods twice in 15 years. That really ignores the requirement from Rapanos that a significant nexus not be speculative or insubstantial. The impacts potentially could be far-reaching. It really would allow the Corps to establish jurisdiction for anything that has a hydrologic connection.”
Read the full article (subscription required).