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PRECON DEVELOPMENT v. U.S. ARMY CORPS OF ENGINEERS

No. 09-2239.

633 F.3d 278 (2011)

PRECON DEVELOPMENT CORPORATION, INCORPORATED, Plaintiff-Appellant, v. UNITED STATES ARMY CORPS OF ENGINEERS, Defendant-Appellee. Chesapeake Bay Foundation; National Wildlife Federation; Natural Resources Defense Council, Amici Supporting Appellee.

United States Court of Appeals, Fourth Circuit.

Decided: January 25, 2011.

Attorney(s) appearing for the Case

ARGUED: Mark R. Baumgartner , Pender & Coward, PC, Virginia Beach, Virginia, for Appellant. Mary Gabrielle Sprague , United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF: Douglas E. Kahle , Pender & Coward, PC, Virginia Beach, Virginia, for Appellant. Ignacia S. Moreno , Assistant Attorney General, Katherine W. Hazard , Austin D. Saylor , Kent E. Hanson , Environmental & Natural Resources Division, Appellate Section, United States Department of Justice, Washington, D.C., for Appellee. Deborah M. Murray , Southern Environmental Law Center, Charlottesville, Virginia; James G. Murphy , Ramya Sivasubramanian , Alex Phipps, National Wildlife Federation, Montpelier, Vermont; Jon Devine , Rebecca Hammer , Natural Resources Defense Council, Washington, D.C.; Jon A. Mueller , Chesapeake Bay Foundation, Annapolis, Maryland, for Amici Supporting Appellee.

Reversed and remanded by published opinion. Judge DUNCAN wrote the opinion, in which Judge SHEDD and Senior Judge HAMILTON joined.

OPINION

DUNCAN, Circuit Judge:

This appeal arises out of a determination made by the Army Corps of Engineers (the "Corps") that it has jurisdiction, under the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq., over 4.8 acres of wetlands located on Precon Development Corporation's ("Precon"'s) property, approximately seven miles from the nearest navigable water. The Corps subsequently denied Precon's application for a CWA permit to impact the...

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