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Post-Rapanos Courts Setting High Evidentiary Bar for Clean Water Act Jurisdiction

December 19, 2007

Courts around the country continue to struggle to interpret the Supreme Court’s groundbreaking Clean Water Act (CWA) decision in Rapanos v. United States, [1] but some trends are beginning to emerge. One trend, evidenced by a recent Eleventh Circuit Court decision, is to set a high evidentiary bar for establishing the Act’s jurisdiction in criminal matters. In this case, United States v. Robison,[2] the Eleventh Circuit overturned a criminal conviction imposed against a pipe manufacturer and two of its employees for CWA violations on the grounds that the jury instructions contained a definition of “navigable waters” that was inconsistent with the plurality decision in Rapanos. The decision demonstrates a willingness to apply Rapanos retroactively to review prior convictions. It also continues a trend among lower courts toward limiting the scope of federal agency authority to require permits for discharging pollutants to rivers, streams, and wetlands where there is no impact shown on traditionally “navigable” waters.

Relying on Justice Kennedy’s “significant nexus” test in Rapanos puts the Eleventh Circuit at odds with the First Circuit Court of Appeals[3] and with a June 2007 joint guidance memorandum[4] in which the U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA) stated that their respective staff may determine CWA jurisdiction under either the Kennedy test or the Scalia test. The Robison decision calls into question the EPA’s post-Rapanos analysis of its CWA jurisdiction and starkly illustrates that federal prosecutors face challenges in explaining Rapanos to juries. The decision also highlights just “how much evidence is required to demonstrate waters are subject to CWA oversight under the more-difficult-to-prove Kennedy test.”[6]


The Robison case began in 1998 with a complaint about a milky discharge into Avondale Creek in Alabama. The Jefferson County Alabama Stormwater Management Authority, the Federal Bureau of Investigation (FBI), the EPA, and the Alabama Department of Environmental Management (ADEM) eventually investigated the discharge’s source. They tracked the problem to McWane, Inc. (McWane), a large manufacturer of cast iron pipes, flanges, valves, and fire hydrants.

In 2004, the United States issued a twenty-five count indictment against McWane and three of its managers, James Delk, Michael Devine, and Charles “Barry” Robison.[7] The indictment alleged that McWane and its managers violated the CWA and McWane’s National Pollution Discharge Elimination System (NPDES) permit by conspiring to knowingly discharge pollutants from McWane’s Birmingham, Alabama plant into Avondale Creek.

Avondale Creek is adjacent to McWane’s plant. It flows into Village Creek, which in turn flows approximately twenty-eight miles into and through Bayview Lake. The lake was created by damming Village Creek, which becomes Locust Fork on the lake’s other side. Locust Fork flows approximately twenty miles out of Bayview Creek before it flows into the Black Warrior River.

McWane utilizes a great deal of water in its pipe manufacturing process. “Process wastewater” that ran out of McWane’s pipe manufacturing machines accumulated in large amounts under McWane’s machinery. McWane has an NPDES permit from the ADEM that allows it to discharge some treated process wastewater into Avondale Creek, but only within the permit’s requirements.

More than 60 witnesses, including former plant workers, testified that McWane and its managers gave orders to pump polluted industrial water into storm drains and Avondale Creek. Environmental engineers testified that the water contained elevated levels of zinc, lead, oil, and grease that exceeded McWane’s permit. In 2005, after a five-week trial before a U.S. District Court for Birmingham, a jury convicted McWane and its managers of violating the CWA. The District Court ordered McWane to pay a $5 million fine and sentenced the managers to serve probation ranging between 24 to 36 months and imposed fines ranging from $2,500 to $90,000.

The defendants appealed on grounds that the EPA did not have jurisdiction under the CWA because Avondale Creek was not a “navigable water” within the CWA definition and also asserted that the district court’s jury instruction erroneously defined “navigable water.” After the defendants’ convictions, the U.S. Supreme Court readdressed in Rapanos how to define “navigable waters” under the CWA.

The Rapanos Decision

The CWA’s primary objective is to “restore and maintain the chemical, physical and biological integrity of the Nation’s waters.”[8] To achieve this express statutory objective, the CWA strictly prohibits discharging pollutants into the “navigable waters of the United States” without an NPDES permit from the EPA or authorized state environmental authority.[9] After Congress passed the CWA, an issue arose concerning the extent to which wetlands adjacent to navigable waters constitute “waters of the United States.” The Supreme Court subsequently confirmed in United States v. Riverside Bayview Homes that waters of the United States subject to federal regulation include tributaries of traditionally navigable waters and wetlands adjacent to navigable waters and their tributaries.

Rapanos v. United States is one of the leading Supreme Court cases, and the most recent, interpreting the scope of CWA jurisdiction.[11] In Rapanos, the Supreme Court, by a 4:4:1 plurality, remanded to the Sixth Circuit the issue of whether the Corps exceeded its statutory authority under the CWA by requiring property owners to acquire permits before dredging and filling certain wetlands.[12] The case presented the Court with the opportunity to determine whether the wetlands at issue were subject to the United States’ CWA jurisdiction. Rapanos also presented the Court with the opportunity to clarify its holding in Solid Waste Agency of Northern Cook County v. U.S. (SWANCC), which had caused uncertainty among regulators, courts, and the regulated community about the breadth of the CWA’s jurisdiction. Unfortunately, the Court’s decision in Rapanos did little to clarify CWA jurisdiction and, in fact, advanced conflicting tests for determining whether wetlands are protected by federal law.

Justice Scalia’s plurality decision in Rapanos narrowly interpreted “waters of the United States,” and would remove many wetlands from federal jurisdiction by requiring a continuous surface water connection.[14] Justice Scalia’s approach failed, however, to command a majority, and was specifically rejected in Justice Kennedy’s concurrence. Justice Kennedy found that the plurality interpretation of “waters of the United States” was inconsistent with the CWA’s text and purpose, and he advanced a test that would require the federal government to establish a “significant nexus” between wetlands and navigable waters on a case-by-case basis.[15] For further analysis of the Rapanos decision, see J. Kray Long Anticipated Supreme Court Wetlands Decision Leaves Much to be Decided, Marten Law Group Environmental News (June 21, 2006).

The Robison Decision

On appeal, the Eleventh Circuit agreed with the defendants and held that the district court judge gave the jury an erroneous definition of “navigable water” and that the prosecution has not shown that the error was harmless. McWane contended Avondale Creek was not a “navigable water” within the CWA’s definition.[16] The United States countered that Avondale Creek’s connections to the Black Warrior River and/or Village Creek were sufficient to establish CWA jurisdiction over McWane’s discharges. Citing a 1997 Eleventh Circuit decision, United States v. Eidson,[17] the district court instructed the jury that navigable waters include any stream that may eventually flow into a navigable stream or river and that such a stream may be man-made or flow intermittently.

The Eleventh Circuit said that Eidson’s expansive definition of the CWA was no longer good law. The Seventh and Ninth Circuits have concluded that the analysis in Justice Kennedy’s Rapanos concurrence provided the controlling test for determining the jurisdictional boundary of the United States’ authority over water bodies and wetlands.[18] In contrast, the First Circuit departed from the other Circuits’ approach and held that the United States could assert jurisdiction over alleged CWA violations by applying either the “significant nexus” test or by meeting the standard set forth in Justice Scalia’s Rapanos plurality opinion.[19] Agreeing with the Seventh and Ninth Circuits, the Eleventh Circuit concluded that Justice Kennedy’s “significant nexus” test provided the governing rule under Rapanos.[20]

Having settled on Justice Kennedy’s test, the Eleventh Circuit then went on to hold that the district court did not mention the phrase “significant nexus” in its “navigable waters” instruction to the jury or advise the jury to consider the chemical, physical, or biological effect of Avondale Creek on the Black Warrior River and, therefore, that the jury instruction did not satisfy Justice Kennedy’s “significant nexus” test and was erroneous.

A witness for the United States testified at the district court that there is a continuous uninterrupted flow between Avondale Creek and the Black Warrior River. However, he did not testify as to any “significant nexus” between the creek and the river. The United States also did not present any evidence about the chemical, physical, or biological effect that Avondale Creek’s water had or might have had on the Black Warrior River. Indeed, the district court observed that there was no evidence of any actual harm or injury to the Black Warrior River. From these facts, the Eleventh Circuit held that the United States failed to meet its burden of demonstrating that the district court’s error in the jury instruction was harmless. Therefore, the Court reversed the convictions and remanded the case.


There are two intriguing footnotes to the Robison decision. First, as the Eleventh Circuit noted, the case is one in which Justice Scalia’s test may actually be more likely to result in CWA jurisdiction than Justice Kennedy’s test because the United States established that there is a continuous, uninterrupted flow between Avondale Creek and the Black Warrior River.[21]

Second, district court Judge Robert Propst, who presided over the McWane trial, will not preside over the case on remand.[22] Two weeks after the Eleventh Circuit decision, Judge Robert Propst issued a thirty-one page Memorandum Opinion explaining that he would direct the clerk to reassign the case to another judge for retrial, citing as one of his reasons that he is “so perplexed by the way the law applicable to [the] case has developed that it would be inappropriate for [him] to try it again.” Judge Propst explains his perplexion in considerable detail stating that what constitutes “navigable water” under the CWA “has been determined to be what one Justice of the Supreme Court … has written which was not agreed to by any of the other eight Supreme Court Justices in Rapanos.” He has a point but that point does not reduce the difficulty businesses, developers, and other parties face in determining when they need a CWA permit.

For more information about Marten Law Group’s water quality and wetlands practice please contact Jeff Kray.

[1] 126 S. Ct. 2208 (2006).

[2] 505 F.3d 1208 (11th Cir. 2007).

[3] See J. Kray “Federal Circuits Split on Application of Supreme Court’s Rapanos Decision,” Marten Law Group Environmental News (December 6, 2006).

[4] A copy of the guidance memo is here.

[5] See J. Kray “Post-Rapanos Guidance on Clean Water Act Jurisdiction Issued by EPA and Corps.” Marten Law Group Environmental News (June 6, 2007).

[6] Appellate Rulings Set New Jurisdiction Hurdle for CWA Enforcement, Greenwire (October 26, 2007) (subscription required).

[7] 505 F.3d at 1211.

[8] 33 U.S.C. § 1251(a).

[9] 33 U.S.C. § 1311(a).

[10] 474 U.S. 121 (1985).

[11] 126 S. Ct. 2208.

[12] Id.

[13] 531 U.S. 159 (2001).

[14] Id. at 2225.

[15] Id. at 2249.

[16] All four defendants appealed. Robison eventually dismissed his appeal as part of resolving a separate Clean Air Act criminal case in Utah. See United States v. McWane, Inc. No. 2:05-cr-00811 (D. Utah Feb. 8, 2006).

[17] 108 F.3d 1336 (11th Cir. 1997).

[18] United States v. Gerke, 464 F.3d 723 (7th Cir. 2006) and Northern California River Watch v. City of Healdsburg, 457 F.3d 1023 (9th Cir. 2006). For further analysis of the post-Rapanos Circuit decisions see J. Kray Federal Circuits Split on Application of Supreme Court’s Rapanos Decision Marten Law Group Environmental News (December 6, 2006). The executive and legislative branches of the federal government have also weighed in post-Rapanos. On June 5, 2007, the Corps and the EPA issued a joint guidance memorandum (guidance) to help personnel at those agencies determine when to exercise CWA jurisdiction over certain wetlands and related waterbodies addressed in Rapanos. See Corps and EPA Responses to the Rapanos Decision, Key Questions for Guidance Release (Key Questions Memo). Meanwhile, federal CWA jurisdiction is again at issue in Congress under a bill that would assert authority under the CWA to the maximum extent allowed under the Commerce Clause. For further analysis of the post-Rapanos regulatory and legislative efforts, see J. Kray Post-Rapanos Guidance on Clean Water Act Jurisdiction Issued by EPA and Corps Marten Law Group Environmental News (June 6, 2007).

[19] United States v. Johnson, 467 F.3d 56 (1st Cir. 2006).

[20] 505 F.3d at 1219-1222.

[21] 505 F.3d at 1224.

[22] A copy of the Memorandum Opinion is here.

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