Posted on December 1, 2011 by Jose Allen
In United States v. Donovan, 2011 U.S. App. LEXIS 22026 (3rd Cir., Oct. 31, 2011), the Third Circuit became the latest Circuit Court of Appeals to weigh in on . the Army Corps of Engineers’ regulatory authority over wetlands under the Clean Water Act in the wake of the Supreme Court’s splintered decision in Rapanos v. United States, 547 U.S. 715 (2006).
In Donovan, the United States brought an enforcement action for filing wetlands without first obtaining a permit from the Corps of Engineers. The district court granted summary judgment in favor of the federal government, finding that, under the “continuous surface connection test” articulated by the plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006), or the “substantial nexus test” laid out by Justice Kennedy in his concurring opinion in Rapanos, the wetlands in question were subject to regulation under the CWA. The court imposed civil penalties and granted the government’s request for injunctive relief.
On appeal Donovan argued that because the multiple opinions in Rapanos did not provide any governing standard, pre-Rapanos case law should govern whether the wetlands on his property were subject to the CWA. The Third Circuit rejected this argument and concluded that either the plurality’s test or Justice Kennedy’s test could be used to determine the CWA’s jurisdictional reach over wetlands. Because the wetlands met either test, the Corps’ exercise of jurisdiction was proper.
The Third Circuit needed to cobble together a governing standard for jurisdiction over wetlands because in Rapanos no one standard commanded majority support. In Rapanos, the Court considered whether wetlands, which lie near ditches or man-made drains that eventually flow into traditional navigable waters, constitute “waters of the United States” within the meaning of the CWA. Justice Scalia, in a plurality opinion in which three other Justices joined, concluded that “the waters of the United States” as used in the CWA “includes only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] . . . oceans, rivers [and] lakes.'” 547 U.S. at 739. Importantly, the plurality opinion noted that the phrase “does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.” Id. With regard to wetlands, the plurality opined that “only those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands, are ‘adjacent to’ such waters and covered by the [Clean Water] Act.” 547 U.S. at 742.
Justice Kennedy concurred in the judgment but struck out on a different path. In his view, the Corps of Engineers’ jurisdiction over wetlands “depends upon the existence of significant nexus between the wetlands in question and navigable waters in the traditional sense.” 547 U.S. at 779. “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.'” Id.
Justice Stevens, in an opinion joined by three other justices, dissented. In the dissenters’ view, the Court should have deferred to the Corps’ interpretation of its jurisdiction under the CWA. Under the Corps’ interpretation, wetlands are subject to its jurisdiction if they are adjacent to tributaries of traditionally navigable waters and thus fall within the term “waters of the United States.”
The Third Circuit concluded that a majority of the Supreme Court would have supported the exercise of the Corps’ jurisdiction under either the plurality’s “continuous connection test” or Justice Kennedy’s “substantial nexus test”.. The Third Circuit pointed out that the dissenting opinion said they would uphold the Corps’ jurisdiction in all cases in which either the plurality’s test or Justice Kennedy’s test is satisfied. The Third Circuit joined the First Circuit (United States v. Johnson, 467 F.3d 56 (1st Cir. 2006)) and the Eighth Circuit (United States v. Bailey, 571 F.3d 791 (8th Cir. 2009)) in concluding that either test is sufficient. The Seventh Circuit (United States v. Genke Excavating, 464 F.3d 723 (7th Cir. 2006)) and the Eleventh Circuit (United States v. Robison, 505 F.3d 1208 (11th Cir. 2007)) have concluded that because he was the “swing” vote for the decision, only Justice Kennedy’s substantial nexus test should be used to determine jurisdiction. The remainder of the circuits that have considered the issue have declined to specify which Rapanos test or tests should be applied.
From what appeared to be a hopelessly fragmented Supreme Court decision, the lower courts have managed to fashion two governing tests for jurisdiction over wetlands. These tests will continue to control for the foreseeable future until they are superseded by Congressional action or agency rulemaking.