United States v. Donovan

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-4295

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UNITED STATES OF AMERICA

v.

DAVID H. DONOVAN,

Appellant

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Appeal from the United States District Court

for the District of Delaware

(D.C. Civil No. 1-96-cv-00484)

District Judge: Honorable Leonard P. Stark

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Argued on July 12, 2011

Before: RENDELL, SMITH and FISHER, Circuit Judges.

(Opinion Filed: October 31, 2011)

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Richard A. Barkasy, Esq.

Schnader Harrison Segal & Lewis

120 Fifth Avenue

2700 Fifth Avenue Place

Pittsburgh, PA 15222

Marieke T. Beck-Coon, Esq.

Stephen A. Fogdall, Esq. [ARGUED]

Schnader Harrison Segal & Lewis

1600 Market Street, Suite 3600

Philadelphia, PA 19103

Counsel for Appellant

Katherine J. Barton, Esq. [ARGUED]

United States Department of Justice

Environment & Natural Resources Division

P.O. Box 23795

L’Enfant Plaza Station

Washington, DC 20026

Patricia C. Hannigan, Esq.

Assistant U.S. Attorney

Office of United States Attorney

1007 North Orange Street, Suite 700

P.O. Box 2046

Wilmington, DE 19899

Kent E. Hanson, Esq.

United States Department of Justice

Environmental Defense Section

P.O. Box 23986

Washington, DC 20026

Counsel for Appellee

2

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OPINION OF THE COURT

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RENDELL, Circuit Judge.

David H. Donovan added fill material to a portion of

his property in New Castle County, Delaware that the United

States contends is “wetlands” subject to the Clean Water Act

(“CWA” or “Act”). The Government brought an enforcement

proceeding against him under the Act to force him to remove

the fill and pay a fine. Donovan argued that his property is

not covered by the CWA. However, the District Court

disagreed, granting summary judgment in the Government’s

favor and imposing a $250,000 fine. In this appeal, we are

called upon to decide what test to apply in order to determine

whether land is “wetlands” subject to the CWA after the

Supreme Court’s ruling in Rapanos v. United States, 547 U.S.

715 (2006). We join the Courts of Appeals for the First and

Eighth Circuits in holding, as the District Court here did, that

property is “wetlands” subject to the CWA if it meets either

of the tests laid out in Rapanos. We hold, further, that

summary judgment was properly granted and will affirm.

I. Background

A. Facts and Procedural Posture

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

3

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 (“Corps”). 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 CWA, 33 U.S.C. § 1311(a). 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 the December 21, 2006 judgment,

arguing that the CWA did not give the Corps jurisdiction over

his land. On July 24, 2008, we appointed amicus to address

4

whether the Supreme Court’s decision in Rapanos v. United

States, 547 U.S. 715 (2006), would require remand in this

case. 1 The Government then filed a motion requesting that

the case be remanded to the District Court so that a record

could be developed on the issue of the Corps’ jurisdiction

over Donovan’s land. We granted that motion and remanded

the case to the District Court on April 13, 2009.

On remand, the District Court referred the case to a

Magistrate Judge for all pretrial matters. On March 15, 2010,

Donovan moved for judgment on the pleadings and the

Government moved for summary judgment. The

Government submitted two expert reports: one from wetland

scientist Edward M. Launay (“Launay report”) and the other

from scientists at the Stroud Water Research Center (“Stroud

report”). Both reports were based on extensive analysis and

testing of Donovan’s property between June 2009 and

November 2009. Launay used a variety of methods to map

stream channels on and around Donovan’s property and to

demonstrate that they were perennial. The Stroud scientists

examined the physical, chemical, and biological connections

between the wetlands on Donovan’s property and

downstream waters of the Sawmill Branch. The Stroud

scientists analyzed, inter alia, the wetlands’ hydrological

connections to downstream waters, the wetlands’ potential for

filtering pollutants, and the wetlands’ role in the aquatic

ecosystem for fish and invertebrates.

1

In Rapanos, the Supreme Court, in a 4-1-4 opinion that we

discuss more fully below, described two new tests for

determining whether property is “wetlands” covered by the

CWA. The issue as to which test controls is a matter of first

impression in this Court, and one we take up in depth below.

5

Donovan did not present any expert evidence in

support of his motion, relying instead on his own affidavit, in

which he expressed familiarity with the pattern of water flow

on his property and stated 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.” JA 639. His affidavit

claimed that “in periods of no rain” the channels on his

property are “completely dry.” JA 640. 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.” Id. 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.” JA 641.

The Magistrate Judge recognized that the sole issue to

be decided was whether the property on which Donovan

placed fill material is subject to regulation under the CWA.

The Magistrate Judge issued a Report and Recommendation

(“R&R”) on July 23, 2010, which recommended that the

District Court deny Donovan’s motion and grant summary

judgment in favor of the Government. In the R&R, the

Magistrate Judge concluded that wetlands are covered by the

CWA if they meet either of the tests articulated by the

Supreme Court in Rapanos. The Magistrate Judge then

analyzed the Government’s expert reports and noted that they

“offered sufficient evidence to support a finding” that the first

Rapanos test was met, JA 17, and that they “adequately

6

show[ed]” that the second Rapanos test was met, JA 22. The

Magistrate Judge did not cite or credit Donovan’s declaration.

The Magistrate Judge also recommended that Donovan’s

motion for judgment on the pleadings be denied, stating that

the Government had adequately pled a basis for asserting

jurisdiction over Donovan’s land.

Donovan objected wholesale to the R&R. On

September 13, 2010, the District Court overruled Donovan’s

objections to the R&R, granted the Government’s motion for

summary judgment, and denied Donovan’s motion for

judgment on the pleadings. The District Court rejected

Donovan’s contention that the Magistrate Judge misapplied

the legal standard for summary judgment, saying that “there

is no genuine issue of material fact as to whether the wetlands

are subject to CWA jurisdiction, and . . . [Donovan] failed to

come forward with evidence to enable a jury to reasonably

find for . . . him on that issue.” JA 30. The District Court

agreed with the Magistrate Judge that federal authority can be

asserted over wetlands that meet either Rapanos test. As to

the first Rapanos test (which we will call the “continuous

surface connection test” or the “plurality’s test”), the District

Court concluded that the Government “propounded

significant evidence” that the test was met, and that

Donovan’s declaration failed to create a genuine issue of

material fact as to whether the test was satisfied. JA 33. The

District Court was also “satisfied that the Government’s

evidence . . . establishes” that the second Rapanos test (which

we will call the “significant nexus test” or “Justice Kennedy’s

test”) was met and noted that Donovan had “largely relie[d]

on arguments by counsel concerning alleged deficiencies with

the Government’s evidence, but put[] forth no evidence of his

own.” JA 35-36. The District Court concluded that Donovan

7

failed to come forward with specific facts showing a genuine

issue for trial and granted the Government’s motion for

summary judgment. Finally, the District Court denied

Donovan’s motion for judgment on the pleadings, holding

that the Government pled enough factual matter to plausibly

suggest that Donovan’s property is subject to the CWA.

On November 8, 2010, Donovan appealed, arguing

that the District Court applied the wrong legal standard to

determine whether the Corps had jurisdiction over Donovan’s

property and misapplied the summary judgment standard.

B. Legal Background

The CWA provides that “the discharge of any

pollutant by any person shall be unlawful.” 33 U.S.C. §

1311(a). According to the statutory definition, “discharge of

any pollutant” includes “any addition of any pollutant to

navigable waters from any point source.” 33 U.S.C. §

1362(12). 2 The CWA defines “navigable waters” as the

“waters of the United States.” 33 U.S.C. § 1362(7). The

Corps has interpreted this to mean that its regulatory

jurisdiction extends over, inter alia, traditional navigable

2

The statute defines “pollutant” as “dredged spoil, solid

waste, incinerator residue, sewage, garbage, sewage sludge,

munitions, chemical wastes, biological materials, radioactive

materials, heat, wrecked or discarded equipment, rock, sand,

cellar dirt and industrial, municipal, and agricultural waste

discharged into water.” 33 U.S.C. § 1362(6). Donovan does

not argue that the filler material he used on his land does not

qualify as a pollutant under the CWA.

8

waters, their tributaries, and wetlands which are adjacent to

any of the above. 33 C.F.R. § 328.3(a). 3

The Supreme Court first considered the CWA’s

applicability to wetlands in United States v. Riverside

Bayview Homes, Inc., 474 U.S. 121 (1985). In that case, the

Corps sought to enjoin a landowner from filling its property

because the Corps deemed the property to be wetlands falling

under the protection of the CWA. The Supreme Court held

that the Corps’ construction of the CWA as applying to

wetlands adjacent to waterways covered by the Act 4 was

reasonable and that the landowner could not fill its property

without a permit from the Corps. Id. at 131-35.

3

The Corps’ regulations define wetlands as “those areas that

are inundated or saturated by surface or ground water at a

frequency and duration sufficient to support, and that under

normal circumstances do support, a prevalence of vegetation

typically adapted for life in saturated soil conditions.

Wetlands generally include swamps, marshes, bogs, and

similar areas.” 33 C.F.R. § 328.3(b). The term “adjacent” is

defined in the regulations as meaning “bordering, contiguous,

or neighboring.” 33 C.F.R. § 328.3(c). According to the

regulations, “adjacent wetlands” include “[w]etlands

separated from other waters of the United States by man-

made dikes or barriers, natural river berms, beach dunes and

the like.” Id.

4

The wetlands in Riverside Bayview were adjacent to a

navigable-in-fact waterway. Such waterways are inarguably

covered by the CWA. See 474 U.S. at 130-31.

9

The Supreme Court next addressed the scope of the

CWA’s coverage in Solid Waste Agency of Northern Cook

County v. U.S. Army Corps of Engineers, 531 U.S. 159

(2001) (“SWANCC”). In SWANCC, the Corps asserted

jurisdiction over “an abandoned sand and gravel pit in

northern Illinois” based on 51 Fed. Reg. 41217, a regulation

that purported to extend the Corps’ jurisdiction to intrastate

waters “which are or would be used as a habitat by”

endangered species or birds that migrate across state lines.

See id. at 162-64. The Court held that the term “navigable

waters,” as defined in the CWA, could not be interpreted to

include “nonnavigable, isolated, intrastate waters” not

adjacent to bodies of open water, such as the pit at issue. Id.

at 171.

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.” Id. at 729 (plurality opinion). 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’

10

reasonable interpretation of its jurisdiction. Id. at 796

(Stevens, J., dissenting). 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.’” Id. at 739 (alterations in

original) (citing Webster’s New International Dictionary 2882

(2d ed. 1954)). 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.” Id.

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.” Id. at 742.

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

11

integrity of other covered waters more readily understood as

‘navigable.’” Id. at 779, 780 (Kennedy, J., concurring).

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.” Id. at 810 (Stevens, J., dissenting). That

practice, he observed “has, on occasion, made it necessary for

Justices to join a judgment that did not conform to their own

views.” Id. (citations omitted). 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. Id. at 810 & n.14.

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II. Discussion 5

A. The Standard(s) for Establishing Federal Regulatory

Jurisdiction Over Wetlands

Following Justice Stevens’s instruction, the District

Court in the instant case examined both the Rapanos

plurality’s test and Justice Kennedy’s test to determine

whether the Corps has jurisdiction over Donovan’s land and

concluded that both tests were met, resulting in a finding of

jurisdiction. Donovan argues that this was error because the

opinions in Rapanos fail to provide any governing standard,

and therefore, under this Court’s opinion in Rappa v. New

Castle County, 18 F.3d 1043 (3d Cir. 1994), pre-Rapanos

case law should govern whether Donovan’s land is subject to

the CWA. We disagree.

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

5

The District Court had jurisdiction to consider this Clean

Water Act enforcement case pursuant to 28 U.S.C. §§ 1331,

1345, and 1355. We have jurisdiction to review the District

Court’s conclusions pursuant to 28 U.S.C. § 1291. We

exercise plenary review over a district court’s grant of

summary judgment. Bouriez v. Carnegie Mellon Univ., 585

F.3d 765, 770 (3d Cir. 2009). We review de novo a district

court’s denial of a motion for judgment on the pleadings.

DiCarlo v. St. Mary’s Hosp., 530 F.3d 255, 259 (3d Cir.

2008).

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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.” 430 U.S. 188, 193

(1977) (citation and internal quotation marks omitted). 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. Gerke, 464 F.3d at 724-25; Robison, 505 F.3d at

1221-22.

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. United

States v. Johnson, 467 F.3d 56, 62-64 (1st Cir. 2006); United

States v. Bailey, 571 F.3d 791, 799 (8th Cir. 2009). 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

14

under the Commerce Clause.” 467 F.3d at 63 (emphasis

added). 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. Id. at 64. 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. Id. 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. See id. 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.” Id. 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.” Id. 6

6

The Johnson Court also suggested that the Supreme Court

has moved away from the Marks formulation, citing several

instances in which “members of the Court have indicated that

15

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. Id. at 66; Bailey, 571

F.3d at 799. 7

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

whenever a decision is fragmented such that no single opinion

has the support of five Justices, lower courts should examine

the plurality, concurring and dissenting opinions to extract the

principles that a majority has embraced.” 467 F.3d at 65-66

(citing cases). Moreover, the Johnson Court stated that “the

fact that Justice Stevens does not even refer to Marks

indicates that he found its framework inapplicable.” Id. at 66.

7

Several Circuit Courts of Appeals have expressly reserved

the issue of which Rapanos test, or tests, governs CWA

enforcement actions. See Precon Dev. Corp. v. U.S. Army

Corps of Eng’rs, 633 F.3d 278, 288 (4th Cir. 2011) (reserving

judgment on whether Corps jurisdiction can be established

under either Rapanos test); N. Cal. River Watch v. Wilcox,

633 F.3d 766, 781 (9th Cir. 2011) (same); United States v.

Cundiff, 555 F.3d 200, 210 (6th Cir. 2009) (declining to

decide which Rapanos test or tests govern because

jurisdiction was proper under both); United States v. Lucas,

516 F.3d 316, 325-27 (5th Cir. 2008) (upholding Corps

jurisdiction over wetlands where evidence at trial supported

jurisdiction under the reasoning of the plurality, Justice

Kennedy, and Justice Stevens).

16

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.

As we have stated in discussing Marks, our goal in

analyzing a fractured Supreme Court decision is to find “a

single legal standard . . . [that] when properly applied,

produce[s] results with which a majority of the Justices in the

case articulating the standard would agree.” Planned

Parenthood of Southeastern Pa. v. Casey, 947 F.2d 682, 693

(3d Cir. 1991), modified on other grounds, 505 U.S. 833

(1992). To that end, we have looked to the votes of

dissenting Justices if they, combined with votes from plurality

or concurring opinions, establish a majority view on the

relevant issue. See United States v. Richardson, No. 11-1202,

--- F.3d ----, 2011 WL 4430808, at *5 (3d Cir. Sept. 23, 2011)

(viewing as “persuasive authority” the shared view of a four-

Justice dissent and a single-Justice concurrence); Horn v.

Thoratec Corp., 376 F.3d 163, 176 & n.18 (3d Cir. 2004)

(“Thus, on the state requirement issue, Justice Breyer joined

with the four-member dissent to make a majority.”); Student

Pub. Interest Research Grp. of N.J., Inc. v. AT&T Bell Labs.,

842 F.2d 1436, 1451 (3d Cir. 1988) (deriving holding from

one Justice concurrence and four dissenting Justices).

The Supreme Court has also employed this mode of

analysis. In United States v. Jacobsen, 466 U.S. 109, 111

(1984), the Supreme Court determined that the rule of law

established by its prior decision in Walter v. United States,

447 U.S. 649 (1980), could be divined by combining the

opinion of the Walter Court (which garnered only two votes)

17

with the opinion of four dissenting Justices. Justice Stevens,

writing for a majority of the Justices in Jacobsen,

downplayed its reliance on the votes of the dissenting Justices

in extrapolating a legal standard from Walter, saying that “the

disagreement between the majority and the dissenters in

[Walter] with respect to the [application of law to fact] is less

significant than the agreement on the standard to be applied.”

Jacobsen, 466 U.S. at 117 n.12; see also Vasquez v. Hillery,

474 U.S. 254, 261 n.4 (1986) (describing as “unprecedented”

the argument that “a statement of legal opinion joined by five

Justices”—including some Justices in dissent—“does not

carry the force of law”), Alexander v. Choate, 469 U.S. 287,

293 & nn. 8-9 (1985) (deriving holdings from opinion of the

Court, concurring opinions, and dissenting opinions); Moses

H. Cone Mem. Hosp. v. Mercury Const. Corp., 460 U.S. 1, 17

(1983) (“On remand, the Court of Appeals correctly

recognized that the four dissenting Justices and Justice

Blackmun formed a majority to require application of the

Colorado River test.”).

Thus, we are to examine the dissenting Justices’ views

to see if there is common ground. Here, there is more than

just common ground. While our sister Courts of Appeals

have struggled to divine the proper approach, we conclude

that the struggle is greatly lessened because Justice Stevens,

along with the other three Justices who joined his opinion,

have actually told us what jurisdictional test is to be applied.

As we noted above, Justice Stevens specifically states:

I would affirm the judgments in both cases, and

respectfully dissent from the decision of five

Members of this Court to vacate and remand. I

18

close, however, by noting an unusual feature of

the Court’s judgments in these cases. It has

been our 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 prior practice has, on occasion, made it

necessary for Justices to join a judgment that

did not conform to their own views. In these

cases, however, while both the plurality and

Justice Kennedy agree that there must be a

remand for further proceedings, their respective

opinions define different tests to be applied on

remand. Given that all four Justices who have

joined this opinion would uphold the Corps’

jurisdiction in both of these cases—and in all

other cases in which either the plurality’s or

Justice Kennedy’s test is satisfied—on remand

each of the judgments should be reinstated if

either of those tests is met.

Rapanos, 547 U.S. at 810 (Stevens, J., dissenting) (footnotes

omitted). And, lest there be any confusion, he adds, “in these

and future cases the United States may elect to prove

jurisdiction under either test.” Id. at 810 n.14. Recognizing

that the plurality and Justice Kennedy had failed to give a

mandate to the Court of Appeals on remand, Justice Stevens

and the dissenters provided the mandate. Were we to

disregard this key aspect of his opinion we would be ignoring

the directive of the dissenters. They have spoken and said

that, while they would have chosen a broader test, they

nonetheless agree that jurisdiction exists if either the

plurality’s or Justice Kennedy’s test is met.

19

Accordingly, Donovan’s invocation of our decision in

Rappa is unavailing. In Rappa, we confronted a Supreme

Court case in which the three opinions “share[d] no common

denominator” and each failed to garner a majority of the

Justices’ votes. Rappa, 18 F.3d at 1060 (analyzing

Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981)). Faced

with precedent in which there was no majority and no point of

agreement whatsoever among the disparate opinions, we

determined that the Supreme Court failed to establish a

governing standard, and we therefore looked to prior case law

to determine the relevant rule of law. Id. That is not the case

here. Instead, in Rapanos there is a point of agreement and

no basis for disregarding the Supreme Court’s directive that

two new tests should apply. 8 Because each of the tests for

8

Because the four Rapanos dissenters explicitly endorsed

both the plurality’s and Justice Kennedy’s jurisdictional tests,

we are not faced with a concern, like in Rappa, that

combining the votes of Justices who joined in different

opinions would lead to unprincipled outcomes. Rappa noted

that it would be possible to predict the outcome in any

theoretical case involving a statute that discriminated among

types of non-commercial speech and/or banned an entire

means of communication. Rappa, 18 F.3d at 1060 n.24. That

is, knowing that four Justices in Metromedia thought statutes

discriminating among types of non-commercial speech are

unconstitutional and that two Justices believed total bans on a

particular medium are unconstitutional, one could surmise

that a statute attempting to do both would be found

unconstitutional by a majority of the Metromedia Justices, but

that a statute purporting to do just one would survive a

challenge. Such a system, the Rappa court noted, would

20

Corps jurisdiction laid out in Rapanos received the explicit

endorsement of a majority of the Justices, Rapanos creates a

governing standard for us to apply: the CWA is applicable to

wetlands that meet either the test laid out by the plurality or

by Justice Kennedy in Rapanos.

In any given case, this disjunctive standard will yield a

result with which a majority of the Rapanos Justices would

agree. See Casey, 947 F.2d at 693. If the wetlands have a

continuous surface connection with “waters of the United

States,” the plurality and dissenting Justices would combine

to uphold the Corps’ jurisdiction over the land, whether or not

the wetlands have a “substantial nexus” (as Justice Kennedy

defined the term) with the covered waters. If the wetlands

(either alone or in combination with similarly situated lands

in the region) significantly affect the chemical, physical, and

biological integrity of “waters of the United States,” then

Justice Kennedy would join the four dissenting Justices from

Rapanos to conclude that the wetlands are covered by the

CWA, regardless of whether the wetlands have a continuous

create the unprincipled outcome that “discriminat[ion] among

types of non-commercial speech would be constitutional in

and of itself, [but] would somehow be magically transformed

into an unconstitutional statute if it also completely banned a

means of communication.” Id. Rapanos creates no such

dilemma. We need not “combine” the votes of Justices

relying on different rationales to find that a majority of the

Rapanos Justices would come out a particular way in a given

case. Two separate rationales each independently enjoy the

support of five or more Rapanos Justices, without any need to

“count[] the votes” of Justices relying on different rationales.

See id.

21

surface connection with “waters of the United States.”

Finally, if neither of the tests is met, the plurality and Justice

Kennedy would form a majority saying that the wetlands are

not covered by 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.

B. Application of the Rapanos tests to the Government’s

Motion for Summary Judgment

As we have now concluded that either standard in

Rapanos can be utilized to establish the Corps’ jurisdiction

over wetlands, we must now determine whether the evidence

before the District Court was sufficient for it to have granted

summary judgment in favor of the Government under either

test.

Summary judgment is appropriate “if the movant

shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). The initial burden is on the party

seeking summary judgment to point to the evidence “which it

believes demonstrate[s] the absence of a genuine issue of

material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986). If the moving party carries this initial burden, “the

nonmoving party must come forward with specific facts

showing that there is a genuine issue for trial” and do more

than “simply show that there is some metaphysical doubt as

22

to the material facts.” Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586-87 (1986) (internal quotation

marks omitted). A party moving for summary judgment on

an issue for which it bears the ultimate burden of proof faces

a more difficult road in seeking summary judgment. As we

have said, “it is inappropriate to grant summary judgment in

favor of a moving party who bears the burden of proof at trial

unless a reasonable juror would be compelled to find its way

on the facts needed to rule in its favor on the law.” El v. Se.

Pa. Transp. Auth., 479 F.3d 232, 238 (3d Cir. 2007) (footnote

omitted). In such a case, “if there is a chance that a

reasonable factfinder would not accept a moving party’s

necessary propositions of fact,” summary judgment is

inappropriate. Id. All reasonable inferences should be drawn

against the party moving for summary judgment. See

Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986); El,

479 F.3d at 238.

The government met its initial burden on summary

judgment of showing that Donovan’s land was subject to the

Corps’ jurisdiction. The Government submitted two reports

prepared by its experts, Edward Launay and scientists from

the Stroud Research Center. These reports satisfy the

Government’s initial burden on summary judgment for both

Rapanos tests.

First, the reports provide sufficient evidence that

Donovan’s wetlands meet the plurality’s test to make out a

prima facie case that the Government is entitled to summary

judgment on the issue of the Government’s jurisdiction. See

Rapanos, 547 U.S. at 742. Both reports present facts showing

that the channels on Donovan’s land—which continue

through the Sawmill Branch and on to the Smyrna River, both

23

navigable-in-fact waters—meet the plurality’s definition of

“relatively permanent.” See id. at 732-33 (plurality opinion).

In concluding that the streams are perennial in nature, the

Launay report cites a “degree of soil saturation and surface

ponding in wetlands during the summer months,

morphological conditions of the vegetation such as

buttressing of tree trunks and formation of hummocks, the

presence and density of plant species adapted to saturated soil

conditions, and the presence of bed, bank, ordinary

watermark and flowing water in the tributary channels.” JA

510. The Launay report also discusses downstream

characteristics, including multiple large culverts, that reflect a

perennial flow from the channels on Donovan’s land. The

Stroud report also concludes that the channels on Donovan’s

land are permanent based on the existence of several

organisms in the wetlands and channels, as well as the

presence of certain species of fish on the property.

Both reports also establish the second requirement of

the plurality’s test: that the wetlands have a “continuous

surface connection” to a covered body of water. The Launay

report tracks a continuous surface connection from

Donovan’s wetlands to the Smyrna River and documents the

findings with fifty-eight photographs carrying explanatory

captions. The Stroud report takes a different approach,

utilizing a tracing chemical that shows a continuous surface

connection. The test results show that chemical levels 2700

meters downstream were non-existent prior to the test, spiked,

and dropped off precipitously thereafter, reflecting a water

flow downstream from Donovan’s property. Therefore, the

Launay and Stroud reports satisfy the Government’s initial

burden on summary judgment with respect to the plurality’s

test.

24

As for Justice Kennedy’s test for CWA coverage, the

reports also satisfy the Government’s initial Rule 56 burden

of showing that there is no genuine dispute that Donovan’s

wetlands, “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.’” 547 U.S. at 780 (Kennedy, J.,

concurring). The Stroud researchers added dissolved bromide

and dye to the wetland complex intersecting Donovan’s

property and measured levels downstream, which indicate

that the Donovan wetlands contribute flow to the Sawmill

Branch. The Stroud report also finds that the headwater

wetlands of the Sawmill Branch, which include Donovan’s

wetlands, help to remove nitrogen and protect the Delaware

Estuary from excessive nutrient loading. The Stroud

scientists conducted studies demonstrating that Donovan’s

wetlands help sequester pollutants such as zinc and polycyclic

aromatic hydrocarbons (PAHs) from downstream waters.

The Government’s experts also conclude that the wetland

complex that includes Donovan’s land plays an important role

in the “aquatic food web,” by providing habitats and nutrients

for fish species, as well as macroinvertebrates that support

aquatic life in traditional navigable waters, and by supplying

energy and nutrients to aquatic life in downstream navigable

waters. The Launay report indicates that the gradient of the

tributary stream channels on Donovan’s land is low, meaning

that the wetlands retain water for relatively long periods of

time and perform important functions, such as reducing

sediment loads and pollutants from storm water, as well as

retaining and transforming nutrients for downstream

navigable waters. Furthermore, the Launay report notes that

the wetlands on and adjacent to Donovan’s property

25

discharge ground water, thereby maintaining stream flow and

preserving fish and wildlife habitats.

However, our analysis does not end here. Having

determined that the Government met its initial burden under

Rule 56, we must next analyze whether Donovan came

forward with specific facts showing that there is a genuine

issue for trial. Matsushita, 475 U.S. at 586-87 (1986). 9

The only evidence Donovan offers in opposition to the

Government’s motion for summary judgment is his four-page

declaration. In that declaration, Donovan states 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.”

JA 639. Furthermore, he claims that “in periods of no rain”

the channels on his property are “completely dry.” JA 640.

Donovan also says 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

9

Donovan argues that the Magistrate Judge and the District

Court misapplied the summary judgment standard by placing

the burden of proof on him to show that his land is not subject

to the CWA. While some language from the R&R and the

District Court’s opinion, read in isolation, might suggest such

a misapplication of Rule 56, we believe that the Magistrate

Judge and District Court appropriately analyzed the second

step of the summary judgment burden-shifting framework in

finding that Donovan had offered no evidence rebutting the

Government’s prima facie showing that it was entitled to

summary judgment.

26

property were “completely dry for significant periods” in

2008, including “the summer months.” Id. Donovan’s

declaration also asserts 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.” JA 641. These statements all appear to be

efforts to counter the Government’s evidence that Donovan’s

wetlands fall within the Rapanos plurality’s test. We need

not, however, analyze whether Donovan has come forward

with facts sufficient to raise a genuine issue about whether the

Rapanos plurality’s test is satisfied because he

unquestionably has failed to raise a genuine issue about

whether Justice Kennedy’s test has been met.

Nothing in Donovan’s affidavit speaks to the effect his

wetlands have on the chemical, physical, and biological

integrity of downstream waters. Donovan’s only attempt to

rebut the Government’s showing in this regard is his

argument that the Government’s evidence is flawed, and that

therefore a reasonable fact-finder could conclude that the

Government failed to establish its regulatory jurisdiction over

Donovan’s land. Specifically, Donovan argues that the

Government’s experts exaggerate the purported effects that

Donovan’s wetlands have on navigable-in-fact waters by

lumping Donovan’s land with 761 acres of other wetlands in

the Sawmill Branch watershed. He also attacks other portions

of the Government’s evidence, calling it uncertain and

speculative, and claiming that it could fail to convince a

reasonable fact-finder that the Corps has jurisdiction over

Donovan’s wetlands. However, even after drawing all

reasonable inferences in Donovan’s favor, we find that he has

not shown a genuine issue for trial.

27

The unrebutted evidence in the record shows that

Donovan’s wetlands contribute water flow to the Sawmill

Branch—which becomes tidal approximately 2.5 miles from

Donovan’s property—and help sequester pollutants such as

zinc and PAHs from downstream waters. Specifically, the

record evidence indicates that the intact wetland flow path on

Donovan’s property removes approximately 540 grams of

zinc and 12 grams of PAH compounds over its 72-meter

length, while a non-wetland flow path on the south of

Donovan’s property removes approximately 49 grams of zinc

and 0.8 grams of PAHs over its 65-meter length. Absent

Donovan’s wetlands, these pollutants would travel

downstream, raising contaminant levels for up to 150,000,000

gallons of water past EPA drinking water guidelines for

decades or centuries to come. The record also shows that the

Donovan wetlands are important sources of energy and

carbon for downstream habitats. In addition, the Stroud

scientists found fish on Donovan’s property that were also

found in downstream waters of Sawmill Branch Creek.

Therefore, the record evidence shows that Donovan’s

wetlands alone significantly affect the chemical, physical, and

biological integrity of “waters of the United States,” without

even considering the effect these wetlands have on such

waters when aggregated with similarly situated lands in the

region. 10

10

We do not purport to set out an exhaustive or exclusive list

of considerations that support a finding of jurisdiction under

Justice Kennedy’s test. Nor do we address the question of

what is meant by the words “or in combination with similarly

situated lands” in Justice Kennedy’s opinion. See Rapanos,

547 U.S. at 780 (Kennedy, J., concurring). We simply note

that, standing alone, the evidence that Donovan’s wetlands

28

Donovan points us to the Supreme Court’s decision in

Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620 (1944),

and argues that summary judgment is inappropriate here

because a reasonable jury would be free to disbelieve the

opinions and conclusions of the Government’s experts.

Sartor is not controlling here because the factual evidence

offered by the Government, and outlined above, is enough to

meet its burden of production for a Rule 56 motion. Donovan

offered no evidence to counter the Government’s factual

showing that Donovan’s property significantly affects the

chemical, physical, and biological integrity of navigable

waters, nor did he raise sufficient doubt about the credibility

of the Government’s evidence to defeat summary judgment.

See Pelphrey v. United States, 674 F.2d 243, 247 (4th Cir.

1982) (affirming summary judgment for government and

distinguishing Sartor as dealing with “opinion evidence”

when the moving party had submitted factual affidavits).

Faced with a motion for summary judgment citing

record evidence supporting the Corps’ jurisdiction, Donovan

cannot rely simply on the mere possibility that a jury would

find the Government’s evidence insufficient. See Matsushita,

475 U.S. at 586; cf. El, 479 F.3d at 247 (affirming summary

judgment for defendant on affirmative defense where nothing

in the record rebutted defendant’s expert evidence). There is

no genuine issue as to the Corps’ jurisdiction in this case and

significantly affect the chemical, physical, and biological

integrity of other waters more readily understood as

“navigable” satisfied the Government’s burden on summary

judgment and that Donovan has done nothing to rebut that

showing so as to create a genuine issue for trial.

29

we will therefore affirm the District Court’s order granting

summary judgment to the Government.

C. Donovan’s Motion for Judgment on the Pleadings

Finally, Donovan challenges the District Court’s denial

of his motion for judgment on the pleadings. He alleges that

the sole basis for the Corps’ purported regulatory jurisdiction

in this case is the claim that Donovan’s wetlands are adjacent

to a tributary of a navigable water. This allegation is derived

from 33 C.F.R. § 328.3(a)(5), which states that any

“tributary” of a water covered by the CWA is itself covered

by the CWA, and 33 C.F.R. § 328.3(a)(7), which states that

any “wetlands adjacent to [covered] waters” are themselves

covered by the CWA. According to Donovan, this was the

purported basis for the Corps’ jurisdiction that the Supreme

Court rejected in Rapanos and therefore a claim of

jurisdiction invoking this standard fails on the pleadings.

The District Court correctly denied Donovan’s motion.

Donovan contends that the Corps has jurisdiction only over

wetlands that are adjacent to navigable-in-fact waters and that

the Government’s pleadings fail for not alleging that

Donovan’s wetlands are adjacent to such waters. This

argument is premised on a notion that we rejected above: that

Rapanos fails to create a governing standard and that,

therefore, pre-Rapanos law applies. The Government’s

complaint need not have pled that Donovan’s wetlands are

adjacent to navigable-in-fact waters and hence the District

Court properly denied Donovan’s motion for judgment on the

pleadings.

30

III. Conclusion

Accordingly, we will affirm the District Court’s grant

of summary judgment in favor of the Government and its

denial of Donovan’s motion for judgment on the pleadings.

31