                              UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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
