Case Study: Precon V. US Army Corps Of Engineers

Law360, New York (March 11, 2011, 3:30 PM EST) -- The Fourth Circuit recently joined several other Circuits in embracing Justice Anthony Kennedy’s “significant nexus test” from Rapanos as the controlling test for finding jurisdiction under the Clean Water Act over wetlands which are not adjacent to navigable waterways.[1] Precon Dev. v. U.S. Army Corps of Eng’rs, No. 09-2239, 15-16 (4th Cir. Jan. 25, 2011), citing Rapanos v. United States, 547 U.S. 715 (2006)(Kennedy, A., concurring).

In an analysis that reflects the continuing confusion among the courts about the reach of the Clean Water Act, the...
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