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On October 31, 2011, the Third Circuit Court of Appeals in U.S. v. Donovan, 2011 WL 5120605 (3d Cir., 2011) further widened the split among circuit courts in holding that the definition of wetlands articulated by either the plurality or Justice Kennedy’s opinion in Rapanos v. United States, 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006) is sufficient for Clean Water Act jurisdiction to be established.  The two tests have been coined the (1) “relatively permanent” and “continuous surface connection” test and the (2) “significant nexus” test. 

In interpreting the term “wetlands”, the Justices in the plurality concluded that they only fall within the scope of the Clean Water Act 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.”  Donovan, 2011 WL 5120605 at*4 citing Rapanos.  “Under [the significant nexus test], wetlands are subject to the strictures of the [Clean Water Act] 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 integrity of other covered waters more readily understood as ‘navigable.’”  Id. at *5.

The Donavan Court followed the decisions of the First and Eighth Circuits in holding that both tests apply.  The Seventh and Eleventh Circuits have held that the “significant nexus” test alone is the standard.  At present, the Ninth Circuit Court has yet to weigh in.  Id. at *6, fn. 7.  The Donovan Court correctly noted that “Courts of Appeals are split on the proper interpretation of Rapanos.”  Donovan, 2011 WL 5120605 at*5.   This continued split among Circuit Courts heightens the probability that the United States Supreme Court will hear this issue in the near future.   Until then, no uniform standard concerning the interpretation of “wetlands” under the Clean Water Act will exist.