Since the Supreme Court issued its splintered 4-1-4 decision in Rapanos v. United States, 547 U.S. 715 (2006), district and circuit courts have grappled with how to define “wetlands” for purposes of application of the Clean Water Act.  Whether adding to the confusion or bringing clarity to the subject, the Third Circuit for the first time has weighed in on the issue in United States v. Donovan, U.S. Court of Appeals for the Third Circuit, No. 10-4295 (3rd Cir., October 31, 2011) (J. Rendell).  Donovan a land owner, defended an enforcement action on the basis that  the Clean Water Act did not apply to his actions in filling part of his property and that the Army Corps lacked jurisdiction because the wetlands at issue were not adjacent to navigable-in-fact waters.  The Third Circuit disagreed.  While Donovan may be disappointed by this decision (after litigating the issues for 15 years), the case has much more far-reaching ramifications.

The Third Circuit described how the Rapanos plurality Justices 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.’”  As to Justice Kennedy’s concurrence, the Third Circuit explained that Justice Kennedy concurred and agreed with the plurality that the jurisdiction of the Army Corps was more restricted than the dissenting Justices concluded, but departed from the pulraliy’s jurisdiction approach, and instead determined 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.’”  Finally, the Third Circuit articulated how the Rapanos dissent added yet another approach,i.e., while the dissenting Justices “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’ jursdiction should be upheld in all cases in which either test is satisfied.”

Affirming the district court’s decision, the Third Circuit sided with the Eighth and First Circuits, and adopted the either-or approach which provides “more than just common ground,” in finding that land consitutes wetlands subject to the Clean Water Act when either the plurality’s or Justice Kennedy’s Rapanos test is satisfied.  As the Third Circuit observed, using this “disjunctive standard will yield a result with which a majority of the Rapanos Justices would agree.”  In at least these three Circuits, then, more land will be categorized as “wetlands,” giving wider berth to the reach of the Clean Water Act and the jurisdiction of the Army Corps.

The First, Third and Eighth Circuits now stand in contrast to the Seventh and Eleventh Circuits, which have held that Justice Kennedy’s significant nexus test is the sole standard coming out of Rapanos.  Donovan highlights how Rapanos led to greater regulatory uncertainty in defining wetlands and invites review through its remarks that the “Courts of Appeals are split on the proper interpretation ofRapanos.”  In view of the widening circuit split, the question of Supreme Court reconsideration of the wetlands issue to resolve ambiguities resulting from Rapanosis more likely a when than an if.  We’ll be curious to see whether the Court will take up the issue in its current composition, or defer this review until one or two new Justices may be appointed by a new administration … depending on 2012 election results.

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