Oct 31: In the U.S. Court of Appeals, Third Circuit, Case No. 10-4295. Appealed from the United States District Court for the District of Delaware. In this important case, David Donovan added fill material to a portion of his property in New Castle County, Delaware that the United States contends is "wetlands" subject to the Clean Water Act (CWA). The Government brought an enforcement proceeding against him under the CWA to force him to remove the fill and pay a fine. Donovan argued that his property is not covered by the CWA. The case provides significant insight and analysis into the controversial 4-1-4 opinion of the U.S. Supreme Court in Rapanos v. United States, as well as related opinions.
The District Court disagreed, granting summary judgment in the Government's favor and imposing a $250,000 fine. In the appeal, the Appeals Court is called upon to decide what test to apply in order to determine whether land is "wetlands" subject to the CWA after the Supreme Court's ruling in Rapanos v. United States, 547 U.S. 715 (2006). The appeals Court says, "We join the Courts of Appeals for the First and Eighth Circuits in holding, as the District Court here did, that property is 'wetlands' subject to the CWA if it meets either of the tests laid out in Rapanos. We hold, further, that summary judgment was properly granted and will affirm."
A Magistrate Judge concluded that wetlands are covered by the CWA if they meet either of the tests articulated by the Supreme Court in Rapanos. The Magistrate Judge then analyzed the Government's expert reports and noted that they "offered sufficient evidence to support a finding" that the first Rapanos test was met. . . and that they 'adequately show[ed]' that the second Rapanos test was met. . ."
The District Court agreed with the Magistrate Judge that federal authority can be asserted over wetlands that meet either Rapanos test. As to the first Rapanos test (which the Appeals Court refers to as the '"continuous surface connection test" or the "plurality's test"), the District Court concluded that the Government "propounded significant evidence" that the test was met, and that Donovan's declaration failed to create a genuine issue of material fact as to whether the test was satisfied. The District Court was also satisfied that the Government's evidence established that the second Rapanos test (which they referred to as the "significant nexus test" or "Justice Kennedy's test") was met and noted that Donovan had largely relied on arguments by counsel concerning alleged deficiencies with the Government's evidence, but put forth no evidence of his own. The District Court concluded that Donovan failed to come forward with specific facts showing a genuine issue for trial and granted the Government's motion for summary judgment. Finally, the District Court denied Donovan's motion for judgment on the pleadings, holding that the Government pled enough factual matter to plausibly suggest that Donovan's property is subject to the CWA.
The Appeals Court further defines the two tests in Rapanos and says, "As for wetlands, the Justices in the plurality concluded that they only fall within the scope of the CWA if they have '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.'" And, "Under Justice Kennedy's approach, wetlands are subject to the strictures of the CWA if they possess a 'significant nexus' with 'waters of the United States,' meaning that 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.""
In the 4-1-4 Supreme Court decision, the Appeals Court says, "At first glance, the Rapanos opinions seem to present an analytical problem: the three opinions articulate three different views as to how courts should determine whether wetlands are subject to the CWA, and no opinion was joined by a majority of the Justices. So which test should apply?. . . Justice Stevens stated that, although the Justices voting to remand disagreed about the appropriate test to be applied, the four dissenting Justices -- with their broader view of the CWA's scope -- would nonetheless support a finding of jurisdiction under either the plurality's or Justice Kennedy's test, and that therefore the Corps' jurisdiction should be upheld in all cases in which either test is satisfied."
The Appeals Court said, "In sum, we find that Rapanos establishes two governing standards and Donovan's reliance on pre-Rapanos case law [i.e. Rappa v. New Castle County, 18 F.3d 1043 (3d Cir. 1994)] is misplaced. We hold that federal jurisdiction to regulate wetlands under the CWA exists if the wetlands meet either the plurality's test or Justice Kennedy's test from Rapanos.
The Appeals Court concludes, "The District Court correctly denied Donovan's motion. Donovan contends that the Corps has jurisdiction only over wetlands that are adjacent to navigable-in-fact waters and that the Government's pleadings fail for not alleging that Donovan's wetlands are adjacent to such waters. This argument is premised on a notion that we rejected above: that Rapanos fails to create a governing standard and that, therefore, pre-Rapanos law applies. The Government's complaint need not have pled that Donovan's wetlands are adjacent to navigable-in-fact waters and hence the District Court properly denied Donovan's motion for judgment on the pleadings."
Access the complete opinion (click here). Access the WIMS Special Report on Rapanos (click here). [#Water, #CA3]
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