United States v. Donovan
661 F.3d 174
3rd Cir.2011Background
- Donovan owns a four-acre parcel in New Castle County, Delaware, within the Sawmill Branch watershed that leads to navigable waters.
- The Corps labeled Donovan’s land wetlands in 1987 and warned that permit requirements applied to further fillings.
- In 1993 the Corps issued cease-and-desist notices to remove 0.771 acres of fill or file a pre-discharge notification; Donovan refused to acknowledge regulation.
- The United States sued under the Clean Water Act in 1996; the district court held Donovan violated the CWA in 2002 and entered a $250,000 civil penalty and removal order in 2006.
- On remand for Rapanos guidance, the government presented two expert reports (Launay and Stroud) supporting jurisdiction; Donovan relied on his own affidavit and offered no counter-expert evidence.
- The district court granted summary judgment for the government, rejecting Donovan’s arguments, and later denied Donovan’s motion for judgment on the pleadings; Donovan appealed.
- II. DISCUSSION confirms that the CWA jurisdiction over wetlands can be established under either the plurality’s test or Kennedy’s significant-nexus test, and the evidence supported summary judgment under both; the district court’s rulings were affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What standard governs CWA wetlands jurisdiction post-Rapanos? | Donovan argues Rapanos lacks a single controlling test and relies on pre-Rapanos law. | The government contends jurisdiction exists under either Rapanos test. | Disjunctive standard: jurisdiction exists if wetlands meet either test. |
| Was summary judgment proper under the Rapanos tests? | Donovan argues genuine issues of fact preclude summary judgment. | The government shows no genuine factual dispute; experts support jurisdiction. | Yes; summary judgment affirmed under both tests. |
| Was Donovan's motion for judgment on the pleadings correctly denied? | Jurisdiction based solely on wetlands’ adjacency to navigable waters; Rapanos rejected precludes this basis. | Pleadings adequately allege jurisdiction under 33 C.F.R. § 328.3. | Correctly denied; plaintiff failed to defeat government’s jurisdictional theory. |
Key Cases Cited
- Riverside Bayview Homes, Inc. v. United States, 474 U.S. 121 (Supreme Court, 1985) (wetlands adjacent to navigable waters fall within CWA)
- Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng'rs, 531 U.S. 159 (Supreme Court, 2001) (narrow interpretation of navigable waters; non-navigable intrastate waters generally not covered)
- Rapanos v. United States, 547 U.S. 715 (Supreme Court, 2006) (two tests: plurality’s continuous surface connection; Kennedy’s significant nexus)
- Marks v. United States, 430 U.S. 188 (Supreme Court, 1977) (framework for selecting controlling rationale in fractured decisions)
- United States v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir., 2006) (Kennedy’s test controls in some circuits; Marks-based approach contested)
- United States v. Johnson, 467 F.3d 56 (1st Cir., 2006) (signals accepting Kennedy or plurality tests for jurisdiction)
- United States v. Bailey, 571 F.3d 791 (8th Cir., 2009) (adopts Kennedy OR plurality test approach to jurisdiction)