A federal judge in Delaware has ruled that either the plurality or concurrence standards in Rapanos v. U.S., 547 U.S. 715 (2006), may be used to establish Clean Water Act (CWA) jurisdiction in wetlands enforcement cases. U.S. v. Donovan, No. 96-484 (D. Del. 9/10/10). The two Rapanos tests emerged from opinions authored by Justices Antonin Scalia and Anthony Kennedy.  

Justice Scalia’s plurality opinion stated that, to establish CWA jurisdiction over wetlands, two findings are required: “that the channel adjacent to the wetlands ‘contains a water of the United States, (i.e., a relatively permanent body of water connected to traditional interstate navigable waters)’”; and “‘that the wetland has a continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins.’” Concurring, Justice Kennedy opined that wetlands are “navigable waters” subject to CWA jurisdiction “if 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.’”  

According to court documents in the Donovan case, pleadings filed by the United States argued that both Rapanos tests were met. The court agreed but ruled that it was necessary to meet only one or the other. The decision was reached on remand from the Third Circuit Court of Appeals, which instructed the district court to develop the record on the issue of CWA jurisdiction in light of Rapanos.