I. Rapanos Recap

It only took five years, but courtesy of the Third Circuit in United States v. Donovan, we now have a straightforward and well reasoned opinion that appears to have cleared up the murky wetlands jurisdiction of the U.S. Army Corps of Engineers. In June 2006, the Supreme Court decided Rapanos v. United States, a case that many hoped would clarify the scope of the Corps’ jurisdiction to regulate wetlands under the Clean Water Act (CWA). Instead of establishing a brightline rule, the Supreme Court produced two divergent and fact intensive tests in its 4-1-4 plurality opinion, leaving the Corps and lower courts the difficult task of determining which test to apply in future jurisdictional determinations.

The plurality test, a more restrictive interpretation of jurisdictional wetlands authored by Justice Scalia, defined “‘waters of the United States’ as used in the CWA . . . “as 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.’”[3] Having narrowly defined “waters of the United States,” the plurality test then concluded that “wetlands . . . 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.’"

Unlike the plurality in Rapanos, Justice Kennedy adopted an arguably more expansive view of the Corps’ jurisdiction. Justice Kennedy’s test concluded that “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.’”