Third Circuit Upholds Corps Wetlands Determination

In US v Donovan, 2011 U.S. App. LEXIS 22026 (3rd Cir. 10/31/11) this case, appellant Donovan owned a four-acre parcel situated within the watershed of the Sawmill Branch. Water from stream channels on the property flowed into the Sawmill Branch which was a navigable water. The Branch then flowed into the navigableSmyrnaRiver which was connected to the Delaware Estuary. In 1987, the Army Corps of Engineers (“Corps”) concluded that Donovan had filled approximately 3/4 of an acre of jurisdictional wetlands and warned him that he would have to obtain a permit if he wanted to fill more than one acre.

In July 1993, the Corps issued a cease-and-desist notice to Donovan after learning he had continued filling wetlands. The Corps ordered him to remove 0.771 acres of fill material or to submit a pre-discharge notification. After he refused to comply with the order, the federal government filed a lawsuit, alleging violations of the Clean Water Act (CWA). In 2006, the United States District Court for the District of Delaware concluded that Donovan had violated the CWA and entered a final judgment, imposing a $250K fine and requiring removal of 0.771 acres of fill.

After the Supreme Court’s decision in Rapanos v US, 547 U.S. 715 (2006), Donovan appealed, arguing that decision had deprived the Corps of jurisdiction over his land. In Rapanos, a four-Justice plurality held that to assert jurisdiction over wetlands, the government would have to show that the wetlands were “relatively permanent” and also had a “continuous surface connection” with navigable waters (the “plurality test). Justice Anthony Kennedy agreed with the conclusion but not the test that was used by the plurality. Instead, he said that wetlands would be subject to CWA if they possess a “significant nexus” with waters of the United States. He said this meant that that the wetlands “either alone or in combination with similarly situated lands in the region” would significantly affect the chemical, physical, and biological integrity of navigable waters (the “Kennedy Test”). Following a motion by the federal government, the case was remanded back to the district court to further develop a record.

At trial, the government introduced evidence showing that the stream channels on and around Donovan’s property were perennial. This evidence included analyzing hydrological connections to downstream waters, the wetlands’ potential for filtering pollutants, and the wetlands’ role in the aquatic ecosystem for fish and invertebrates. To rebut this evidence, Donovan simply provided an affidavit. He said the only source of water flow on his property was rainwater run-off from the adjacent highway and that the stream channels around his property were dry when between rainfall events.

The magistrate concluded that wetlands were subject to the CWA if they met either of the Rapanos tests. He then ruled the government had offered sufficient evidence to establish the Rapanos plurality test and that there was adequate evidence to support the Kennedy test. The district court adopted the magistrate’s recommendations and granted the Government’s motion for summary judgment.

On appeal, Donovan argues that the district court should not have used the Rapanos tests but instead should have relied on the pre-Rapanos decision in Rappa v. New Castle County, 18 F.3d 1043 (3d Cir. 1994). However, the Court of Appeals for the Third Circuit sided with the First and Eighth Circuits, and held that regulatory jurisdiction could be established over wetlands using either the Rapanos plurality or Kennedy tests.

The Third Circuit said that while Donovan’s affidavit alleged facts that could possibly raise a genuine issue of fact if the government had presented sufficient facts to satisfy the plurality test, it did not have to reach that issue because he had because he unquestionably failed to raise a genuine issue about whether Justice Kennedy’s test had been met. The court found the following facts supported jurisdiction under the Kennedy test:

  • Dissolved bromide and dye was placed into the wetlands near Donovan’s property and was observed in the Sawmill Branch, which became a tidal water approximately 2.5 miles from Donovan’s property;
  • The headwater wetlands of the Sawmill Branch which include Donovan’s wetlands helped to remove nitrogen and protect the Delaware Estuary from excessive nutrient loading;
  • The wetlands on Donovan’s property helped sequester pollutants such as zinc and polycyclic aromatic hydrocarbons (PAHs) from downstream water. Specifically, the evidence showed that the intact wetland flow path on Donovan’s property removed approximately 540 grams of zinc and 12 grams of PAH compounds over a 72-meter length while non-wetland flow path removed approximately 49 grams of zinc and 0.8 grams of PAHs over a 65-meter length. Absent Donovan’s wetlands, these pollutants would travel downstream, raising contaminant levels for up to 150,000,000 gallons of water;
  • The wetlands at Donovan’s land played an important role in the “aquatic food web” by providing habitats and nutrients for fish species as well as macro-invertebrates who, in turn, were important sources of energy and carbon for downstream habitats;
  • Fish on Donovan’s property were also found in downstream waters of Sawmill Branch Creek;
  • The tributary stream channels on Donovan’s land had a low gradient, meaning that the wetlands retained water for relatively long periods of time;
  • The wetlands performed important functions such as reducing sediment loads and pollutants from storm water as well as retaining and transforming nutrients for downstream navigable waters;
  • The wetlands on and adjacent to Donovan’s property discharged ground water, thereby maintaining stream flow and preserving fish and wildlife habitats.

The court said that Donovan’s affidavit did not address the effect the wetlands had on the chemical, physical, and biological integrity of downstream waters. Thus, the court said the record evidence clearly showed that Donovan’s wetlands alone significantly affected the chemical, physical, and biological integrity of “waters of theUnited States”.

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