United States v. Donovan, No. 10-4295 (3d Cir. 2011)Annotate this Case
The four-acre parcel is within the watershed of the Sawmill, which flows into the Smyrna River, then into the Delaware Estuary and to Delaware Bay. The Sawmill becomes tidal 2.5 miles from the property. In 1987, the Army Corps of Engineers categorized the site as wetlands, concluded that ¾ of an acre had been filled, and warned the owner that a permit was required to fill more than one acre. In 1993, the Corps found that he had continued to fill without a permit and ordered removal of 0.771 acres of fill or submission of a pre-discharge notification. In 1996, the government sued, under the Clean Water Act, 33 U.S.C. 1311(a). In 2006, the court entered judgment, imposing a $250,000 fine and requiring removal of 0.771 acres of fill. The Third Circuit remanded, in light of the 2006 Supreme Court decision, Rapanos v. U.S. On remand, the government presented expert evidence; the owner submitted an affidavit based on personal knowledge. The court granted the government summary judgment. The Third Circuit affirmed, rejecting an argument that the Corps has jurisdiction only over wetlands adjacent to navigable-in-fact waters. There is no genuine issue of Corps' jurisdiction; nothing in the affidavit addressed the effect on the chemical, physical, and biological integrity of downstream waters.