Donovan has owned a four-acre parcel of land bordering Route 13 near Smyrna in New Castle County, Delaware since September 29, 1982. The land is situated within the watershed of the Sawmill Branch, which flows into the Smyrna River, and then into the Delaware Estuary and on to the Delaware Bay. The Sawmill Branch becomes tidal approximately 2.5 miles from Donovan’s property. In August 1987, the land was inspected by the United States Army Corps of Engineers. Following this inspection, the Corps categorized the property as wetlands, concluded that approximately ¾ of an acre had been recently filled by Donovan, and warned Donovan that federal law required him to obtain a permit should he wish to fill more than one acre of his property.
In early 1993, the Corps again inspected Donovan’s land and found that he had continued to fill his property without a permit. In July 1993, the Corps sent a cease-and-desist notice to Donovan, ordering him to remove 0.771 acres of fill material, or to submit a pre-discharge notification. Donovan rebuffed this initial notice and the similar notices that followed. Donovan’s emphatic response to the notices was that the Corps had no right to regulate the use of his land.
In 1996, the United States sued Donovan, alleging that he had violated the Clean Water Act. In March 2002, the United States District Court for the District of Delaware concluded that Donovan had violated the CWA. Donovan appealed, but we dismissed the appeal for lack of jurisdiction because the District Court’s order was not then final. On December 21, 2006, the District Court entered a final judgment against Donovan, imposing a $250,000 fine and requiring him to remove 0.771 acres of fill from his land.
Donovan appealed, and claimed that his property was did not fall under the Clean Water Act, because it was not a navigable stream. Instead, he claimed that “the amount of water flowing on my Property in a given period is completely dependent on the amount of rainfall in the area during that period” and “[t]he only source of water flow on my Property is rainwater run-off from the adjacent highway.” His affidavit claimed that “in periods of no rain” the channels on his property are “completely dry.” Donovan also claimed that “2009 and 2010 are the rainiest and wettest years that I can recall in the nearly 50 years I have lived in the Smyrna region” and that the channels on his property were “completely dry for significant periods” in 2008, including “the summer months.” Donovan also stated that “[i]n periods of heavy rainfall, when there is water flowing on my Property, the rainwater channels are clearly defined and easy to differentiate from the neighboring land.”
The CWA provides that “the discharge of any pollutant by any person shall be unlawful.” According to the statutory definition, “discharge of any pollutant” includes “any addition of any pollutant to navigable waters from any point source.” The CWA defines “navigable waters” as the “waters of the United States.” The Corps has interpreted this to mean that its regulatory jurisdiction extends over, inter alia, traditional navigable waters, their tributaries, and wetlands which are adjacent to any of the above.
The Supreme Court’s most recent exposition on the breadth of the Corps’ jurisdiction under the CWA came in Rapanos v. United States, 547 U.S. 715 (2006). In Rapanos, a consolidation of two cases, the Court considered “whether four Michigan wetlands, which lie near ditches or man-made drains that eventually empty into traditional navigable waters, constitute ‘waters of the United States’ within the meaning of the Act.” The Court of Appeals for the Sixth Circuit had upheld the Corps’ claim of jurisdiction. The Supreme Court, in a fractured 4-1-4 decision, vacated those judgments and remanded for further proceedings to determine whether the wetlands were subject to the restrictions of the CWA.
Four dissenting Justices took an expansive view of the CWA’s reach. Justice Stevens, writing for the dissenting Justices, stated that the Court should have deferred to what he and his fellow dissenting Justices viewed as the Corps’ reasonable interpretation of its jurisdiction. However, five Justices believed that the Corps’ jurisdiction is more limited, although they did not all agree on the proper test to determine the scope of that jurisdiction.
Justice Scalia, writing for a four-Justice plurality, stated that the term “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.’” The plurality opinion noted that “the phrase [‘the waters of the United States’] does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.” 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.”
Justice Kennedy concurred. Although agreeing with the plurality’s conclusion that the Corps’ jurisdiction was more limited than the dissenters believed and that the case should be remanded, Justice Kennedy disagreed with the plurality’s jurisdictional test. 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.’”
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? Interestingly, after explaining why he would have affirmed the judgments below, Justice Stevens noted that, “[i]t has been [the Supreme Court’s] practice in a case coming to us from a lower federal court to enter a judgment commanding that court to conduct any further proceedings pursuant to a specific mandate.” That practice, he observed “has, on occasion, made it necessary for Justices to join a judgment that did not conform to their own views.” Then, 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.
While the Courts of Appeals are split on the proper interpretation of Rapanos, none has adopted Donovan’s position. The Courts of Appeals for the Seventh and Eleventh Circuits have concluded that Justice Kennedy’s test alone creates the applicable standard for CWA jurisdiction over wetlands. United States v. Gerke Excavating, Inc., 464 F.3d 723, 724-25 (7th Cir. 2006); United States v. Robison, 505 F.3d 1208, 1221-22 (11th Cir. 2007). These courts based their conclusions on an analysis of the Supreme Court’s decision in United States v. Marks, in which the Court directed that, “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” In their view, Justice Kennedy’s opinion in Rapanos controls because, among those Justices concurring in the judgment, Justice Kennedy’s view is the least restrictive of federal jurisdiction.
The Courts of Appeals for the First and Eighth Circuits have taken a different view. These courts examined the Supreme Court’s directive in Marks, but found that the Rapanos opinions did not lend themselves to a Marks analysis because neither the plurality opinion nor Justice Kennedy’s opinion relied on “narrower” grounds than the other. Judge Lipez, writing for the majority of the panel in Johnson, disagreed that the “narrowest grounds” in the Marks sense necessarily means those grounds least restrictive of federal jurisdiction. The court in Johnson stated that “it seems just as plausible to conclude that the narrowest ground of decision in Rapanos is the ground most restrictive of government authority . . . because that ground avoids the constitutional issue of how far Congress can go in asserting jurisdiction under the Commerce Clause.” Even if one were to conclude that the opinion resting on the narrowest grounds is the one that relies on “less sweeping reasons than the other”—meaning that it requires the same outcome (here, the presence of federal regulatory jurisdiction) in only a subset of the cases that the other opinion would, and in no other cases—the court in Johnson concluded that Marks is unhelpful in determining which Rapanos test controls. This is because Justice Kennedy’s test would find federal jurisdiction in some cases that did not satisfy the plurality’s test, and vice versa. For example, if there is a small surface water connection between a wetland and a remote navigable water, the plurality would find jurisdiction, while Justice Kennedy might not. Furthermore, a wetland that lacks a surface connection with other waters, but significantly affects the chemical, physical, and biological integrity of a nearby river would meet Justice Kennedy’s test but not the plurality’s. It is therefore difficult, if not impossible, to identify the “narrowest” approach.
Accordingly, the Johnson Court looked to Justice Stevens’s approach in Rapanos and found it to provide “a simple and pragmatic way to assess what grounds would command a majority of the Court.” According to the Johnson Court, following Justice Stevens’s instructions and looking to see if either Rapanos test is satisfied “ensures that lower courts will find jurisdiction in all cases where a majority of the Court would support such a finding.”
Therefore, the Courts of Appeals for the First and Eighth Circuits held that federal regulatory jurisdiction can be established over wetlands that meet either the plurality’s or Justice Kennedy’s test from Rapanos.
We agree with the conclusion of the First Circuit Court of Appeals that neither the plurality’s test nor Justice Kennedy’s can be viewed as relying on narrower grounds than the other, and that, therefore, a strict application of Marks is not a workable framework for determining the governing standard established by Rapanos. We also agree with its conclusion that each of the plurality’s test and Justice Kennedy’s test should be used to determine the Corps’ jurisdiction under the CWA.
In sum, we find that Rapanos establishes two governing standards and Donovan’s reliance on pre-Rapanos case law 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.
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