When the United States Supreme Court issued its wetlands defining decision in Rapanos v. United States,1 environmental practitioners, real estate developers, and consultants believed that boundaries would be set for determining when a wetland was regulated under the Clean Water Act (“CWA”). Although the Rapanos decision was an unusual 4-1-4 decision, there remained hope that a uniform interpretation of the wetlands definition would apply. The uniform interpretation has not been forthcoming.
On October 31, 2011, the Third Circuit Court of Appeals further widened the split among the circuits by holding in United States v. Donovan2 that compliance with the definition of wetland as articulated by either the Rapanos plurality or Justice Kennedy was sufficient for CWA jurisdiction to apply.3 The Donovan court followed the decisions of the First and Eighth Circuits by holding that property is “wetlands” subject to CWA jurisdiction if either of two tests is met: (i) the Rapanos plurality “relatively permanent” and “continuous surface connection” test, or (ii) the Justice Kennedy “significant nexus” test. These three circuits now conflict with the decisions of the Seventh and Eleventh Circuits that have held that Justice Kennedy’s “significant nexus” test alone creates the applicable legal standard.4
The defendant in this case, Mr. Donovan, began his wild jurisdictional wetland journey with the Army Corps of Engineers and EPA in 1987 with the first inspection of his four acre parcel by the Corps of Engineers. After back and forth informal disputes with Corps, the United States initiated this litigation against Donovan in 1996.5 However, it was not until 2006 that a final judgment was entered against Donovan imposing a fine of $250,000 for unlawfully filling part of his four acre parcel. Now, fifteen years after suit was filed, the Third Circuit affirmed the $250,000 penalty imposed on summary judgment for Donovan’s unlawfully filling wetlands subject to CWA jurisdiction. The Court noted that Mr. Donovan elected not to offer his own expert evidence on whether the land was a Rapanos wetland, but instead chose to pick at the government’s argument.6
Significant resources have been spent in disputes over whether wetlands are subject to CWA jurisdiction. Although no reliable estimates have been presented, many millions of dollars have been spent in prosecuting and defending these claims. Rapanos was intended to end these disputes. Mr. Donovan’s fifteen years of litigation over the addition of fill to a four acre parcel is testament to the wasteful confusion created by a regulatory interpretation that even the Supreme Court cannot unwind. With this split in the circuits, it is likely that the Supreme Court will once again be given the opportunity to lend clarity where prior efforts have failed.