ELR Citation: ELR 20251
No(s). 96-484-LPS (D. Del. Sep 10, 2010)

A district court adopted a magistrate judge's report and recommendation concluding that the government can establish CWA jurisdiction under either the plurality test or concurrence test set forth in Rapanos v. United States, 547 U.S. 715, 36 ELR 20116 (2006). The Third Circuit has yet to rule on the issue, but a survey of other Circuit Courts reveals that the concurrence test has been the common factor in most analyses, and that the First, Sixth, and Eighth Circuits have held that jurisdiction is proper under either the plurality or concurrence tests. Here, the disputed wetlands are subject to CWA jurisdiction under both tests. The evidence shows that streams on defendant's property are "relatively permanent" and that there is a continuous surface connection between the wetlands and the streams. The wetlands at issue also have a significant nexus with navigable waters. Accordingly, the court adopted the magistrate judge's conclusion that the wetlands at issue are "waters of the United States" and are within the jurisdiction of the CWA.