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. Read More »

Share | Email| Comments|  Topics: Army Corps, Clean Water Act, Decisions of Note, Donovan, Enforcement Action, Rapanos, Real Estate, Wetlands