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Third Circuit Weighs in on Clean Water Act Jurisdiction under Rapanos

December 6, 2011

The Third Circuit is the latest federal appeals court to attempt to decipher the U.S. Supreme Court’s Rapanos v. United States[1] decision. Rapanos is the 4:1:4 decision from 2006 – famous in Clean Water Act (“CWA”) circles – in which the Supreme Court announced differing standards for delineating the reach of federal jurisdiction over wetlands and other “isolated waters.” In United States v. Donovan,[2] the Third Circuit, joining two other circuits, holds that a wetland falls within CWA jurisdiction if it satisfies either test announced in the fractured Rapanos decision. Specifically, the court held that a wetland falls within CWA jurisdiction if: (1) Justice Scalia’s plurality test is met – i.e., there is a “continuous surface connection” between a wetland and a water of the United States in its own right, “so that there is no clear demarcation between ‘waters’ and ‘wetlands’”; or (2) Justice Kennedy’s “significant nexus” test is met – i.e., there is “a significant nexus to waters that are or were navigable in fact or that could reasonably be so made” so that, “either alone or in combination with similarly situated lands in the region,” the wetlands “significantly affect the chemical, physical, and biological integrity of the covered waters more readily understood as ‘navigable.’”

Donovan follows on the heels of the U.S. Army Corps of Engineers’ (“Corps”) recently released draft guidance regarding CWA jurisdiction.[3] The draft guidance relies heavily on Justice Kennedy’s concurring opinion in Rapanos, and replaces the Corps’ previous 2008 guidance interpreting CWA jurisdiction under Rapanos. Since recent congressional efforts to clarify the CWA following Rapanos have failed and the Supreme Court appears unwilling to revisit the issue anytime soon, lower court decisions and agency guidance will continue to guide CWA jurisdiction for the foreseeable future.

Statutory Background

The CWA prohibits the unpermitted discharge of pollutants into “navigable waters” from any point source.[4] The CWA defines “navigable waters” as “waters of the United States.”[5] The CWA requires a § 404 permit to discharge dredged or fill material into waters of the United States.[6] The Corps administers the CWA § 404 permitting program, but the Corps shares enforcement duties with EPA for unpermitted discharges of dredged or fill material. The Corps has interpreted “waters of the United States” to include traditional navigable waters, their tributaries, and wetlands adjacent to those waterways or tributaries.[7] Under the Corps’ regulations, “adjacent wetlands” include wetlands separated from waters of the United States “by man-made dikes or barriers, natural river berms, beach dunes and the like.”[8]

The Rapanos Decision

The U.S. Supreme Court’s 2006 decision Rapanos v. United States addressed whether wetlands adjacent to “ditches or man-made drains that eventually empty into traditional navigable waters” fell within CWA jurisdiction.[9] By a 4:1:4 plurality, the Court vacated the decisions below upholding CWA jurisdiction over the wetlands in question and remanded to the Sixth Circuit the issue of whether the Corps exceeded its statutory authority under the CWA by requiring property owners to acquire § 404 permits before dredging and filling the wetlands. In doing so, the Court advanced conflicting tests for determining whether wetlands are protected by federal law. Writing for a four justice plurality, Justice Scalia interpreted “waters of the United States” to include “only those relatively permanent, standing or continuously flowing bodies of water” and exclude “channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.”[10] Scalia’s opinion excluded wetlands from CWA jurisdiction unless the “wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”[11]

Justice Kennedy concurred in the Court’s decision, but wrote separately to reject the plurality’s limited interpretation of “waters of the United States.” Justice Kennedy advanced a test that requires the United States to establish a significant nexus between wetlands and navigable waters on a case-by-case basis. Under the “significant nexus” test, “wetlands possess the requisite nexus, and thus come within the statutory phrase ‘navigable waters,’ if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’ When, in contrast, wetlands’ effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term ‘navigable waters.’”[12]

Following Rapanos, the U.S. Circuit Courts of Appeal have split regarding the appropriate test to determine CWA jurisdiction. The Seventh and Eleventh Circuits concluded that Justice Kennedy’s “significant nexus test” alone creates the applicable standard for CWA jurisdiction over wetlands,[13] while the First and Eighth Circuits have held that jurisdiction is established if the wetland meets either the plurality’s or Justice Kennedy’s tests.[14] The Third Circuit had not considered Rapanos’ impact prior to Donovan.

Background to the Donovan Decision

Donovan is a case that has been going on for nearly 25 years. The story starts in 1987, when the Corps concluded that several perennial streams on David Donovan’s property in Delaware constituted wetlands subject to CWA jurisdiction. On returning to inspect the property in 1993, the Corps determined that Donovan had been filling a portion of the wetlands without a § 404 permit. Shortly thereafter, the Corps issued an administrative order directing Donovan to remove the fill and restore the wetlands. Donovan refused, and in 1996 the Government filed suit in federal district court to enforce the order. The district court granted the Government summary judgment and ordered Donovan to pay a $250,000 fine. Donovan appealed the decision, and while the appeal was pending, the U.S. Supreme Court decided Rapanos v. United States. In light of the decision, the Third Circuit accepted the Government’s request for a remand to develop the record regarding the Corps’ CWA jurisdiction over Donovan’s property. On remand, the district court concluded that the Government satisfied the jurisdictional tests announced in both Scalia’s plurality and Kennedy’s concurrence. Donovan again appealed the decision.

The Court’s Decision

The Third Circuit upheld the district court, concluding that Donovan violated the CWA by depositing fill into “waters of the United States.” In doing so, the Third Circuit joined the First and Eighth Circuits in holding that CWA jurisdiction may be established under either the plurality’s or Justice Kennedy’s test announced in Rapanos.

To decide how CWA jurisdiction should be applied in the wake of Rapanos, the Third Circuit first considered the “narrowest-grounds rule” announced by the Supreme Court in Marks v. United States.[15] Under that rule, “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.”[16] The court agreed with the First and Eighth Circuits that the narrowest-grounds rule could not be applied to Rapanos because “neither the plurality opinion nor Justice Kennedy’s opinion relied on ‘narrower’ grounds than the other.”[17] “This is because Justice Kennedy’s test would find federal jurisdiction in some cases that did not satisfy the plurality’s test, and vice versa.”[18] In such a situation, the court explained that it must look to the votes of the dissenting Justices in the case to determine “if they, [when] combined with votes from plurality or concurring opinions, establish a majority view on the relevant issue.”[19] Looking to the instructions in Justice Steven’s dissent, the court concluded that CWA jurisdiction applies to wetlands if either the plurality’s test or Justice Kennedy’s test is met.[20]

Turning to the facts at hand, the court affirmed the district court’s decision that the wetlands on Donovan’s property fell within CWA jurisdiction. The court first applied the facts to the plurality’s test. On summary judgment, the Government presented two expert reports showing that the channels on Donovan’s land (which flowed into navigable waters) met the plurality’s “relatively permanent” definition.[21] The reports cited soil saturation conditions and ponding water during the summer months, as well as the existence of several organisms typically found in wetlands. The reports also satisfied the second requirement of the plurality decision – a “continuous surface connection” to a “jurisdictional” waterway by documenting a surface connection from Donovan’s wetlands to the Smyrna River.[22] The court held that the reports satisfied the significant-nexus test because the wetlands: (1) contributed flow to nearby tributaries; (2) acted to remove nitrogen loading from navigable waterways; (3) sequestered petroleum and other contaminants from those waterways; and (4) supplied nutrients to downstream aquatic life (among others). Thus, the court concluded that the Government had met its initial burden on summary judgment under either test.[23]

The court then considered Donovan’s evidence presented in response. Donovan’s only submission was his declaration which tied the amount of water on his property to the amount of rainfall runoff from an adjacent highway and asserted that there were periods when the channels on his property were “completely dry.”[24] The court noted Donovan’s statements “appear to be efforts to counter the Governments evidence that Donovan’s wetlands fall within the Rapanos plurality’s test.”[25] The court declined to analyze whether the statements defeated summary judgment under the plurality opinion, however, on the basis that Donovan had “unquestionably” failed to raise a genuine issue regarding whether the wetlands met Justice Kennedy’s significant-nexus test. According to the court, Donovan’s evidence failed because “nothing in [his] affidavit speaks to the effect his wetlands have on the chemical, physical, and biological integrity of downstream waters.”[26] After drawing all the reasonable inferences in Donovan’s favor, the court concluded that “he has not shown a genuine issue for trial.”[27] As such, the court affirmed summary judgment for the Government.


In Donovan, the Third Circuit joined the First and Eighth Circuits in holding that wetlands are subject to the permitting requirements of the CWA if either Rapanos test is satisfied. As this latest attempt illustrates, the confusion over CWA jurisdiction appears likely to continue until the Supreme Court or Congress revisit the issue.

For more information regarding United States v. Donovan, the U.S. Supreme Court’s Rapanos decision, or water quality issues in general, please contact any member of Marten Law’s Water Quality or Permitting & Environmental Review practice groups.

[1] Rapanos v. United States, 547 U.S. 715 (2006).

[2] United States v. Donovan, No. 10–4295, --- F.3d ----, 2011 WL 5120605 (3d Cir. Oct. 31, 2011).

[3] For more information on the Corps’ draft guidance, see Jeff Kray, EPA/Corps Release Draft Guidance in Bid to Expand Federal Jurisdiction Over Wetlands, Marten Law Environmental News (May 4, 2011).

[4] See 33 U.S.C. §§ 1311(a), 1344.

[5] 33 U.S.C. § 1362(7).

[6] 33 U.S.C. §§ 1311(a), 1344.

[7] 33 C.F.R. § 328(a)(7).

[8] 33 C.F.R. § 328(c).

[9] Rapanos v. United States, 547 U.S. 715 (2006).

[10] Id. at 739 (Scalia, J., plurality).

[11] Id. at 742.

[12] Id. at 759, 779-81 (Kennedy, J., concurring). Justice Roberts also filed a concurring opinion. Justice Stevens filed a dissenting opinion, in which Justice Souter, and Ginsburg joined. Justice Breyer also filed a dissenting opinion. For a complete analysis of the decision, see J. Kray, Long Anticipated Supreme Court Wetlands Decision Leaves Much to be Decided, Marten Law Group Environmental News (June 21, 2006).

[13] United States v. Robison, 505 F.3d 1208, 1221–22 (11th Cir. 2007); United States v. Gerke Excavating, Inc., 464 F.3d 723, 724–25 (7th Cir. 2006).

[14] United States v. Bailey, 571 F.3d 791, 799 (8th Cir. 2009); United States v. Johnson, 467 F.3d 56, 62–64 (1st Cir. 2006).

[15] Marks v. United States, 430 U.S. 188, 193 (1977).

[16] Donovan, 2011 WL 5120605, at *5 (quoting Marks, 430 U.S. at 193) (alteration in original).

[17] Id. at *6-7.

[18] Id. at *6.

[19] Id. (citing United States v. Richardson, 658 F.3d 333 (3d Cir. 2011)).

[20] Id. at *7-9.

[21] Id. at *9 (citing Rapanos, 547 U.S. at 732–33 (plurality opinion)).

[22] Id. at *10.

[23] Id.

[24] Id. at *11.

[25] Id.

[26] Id.

[27] Id. at *13.

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