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United States v. Donovan

ELR Citation: 42 ELR 20328
Nos. 10-4295, (3d Cir., 10/31/2011)

The Third Circuit affirmed a lower court decision granting summary judgment in favor of the U.S. government and imposing a $250,000 fine against a landowner for filling wetlands on his property without a permit. The court joined the U.S. Courts of Appeals for the First and Eighth Circuits in holding, as the lower court did, that property is "wetlands" subject to the CWA if it meets either the plurality test or Justice Kennedy's test in Rapanos v. United States, 547 U.S. 715, 36 ELR 20116 (2006). Here, the government met its initial burden of showing that the landowner's property was subject to U.S. jurisdiction under both tests. The evidence demonstrates that streams on the property that flow to navigable-in-fact waters are "relatively permanent" and that the wetlands on the property have a "continuous surface connection" to a covered body of water, thereby meeting the plurality's test. As for Justice Kennedy's test, there is no genuine dispute that the wetlands at issue, "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.'" Because the landowner failed to present specific facts showing that there is a genuine issue for trial, the lower court properly granted summary judgment in favor of the government.