United States v. Donovan

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 10-4295
_____________

UNITED STATES OF AMERICA

v.

DAVID H. DONOVAN,
Appellant
_____________

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
_____________

Argued on July 12, 2011

Before: RENDELL, SMITH and FISHER, Circuit Judges.

(Opinion Filed: October 31, 2011)

_____________
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
 _____________

OPINION OF THE COURT
_____________

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.

12
 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).

13
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