Summary of a Recent
Judicial
Development in
Clean Water Act
Clean Water Act Test for "Navigable Water"
Walt McCarterNational AgLaw Center Research Associate
Summary of Decision
In United States v. Robison, 505 F.3d 1208 (11th Cir. 2007), the Eleventh Circuit Court of Appeals adopted the "significant nexus" test for defining a "navigable water" under the Clean Water Act (CWA), and remanded criminal defendants' cases for a new trial in accordance with that test.
Background
Defendants appealed their convictions for conspiracy to violate the CWA, stemming from the dumping of wastewater into a nearby river in violation of their National Pollutant Discharge Elimination Systems (NPDES) permit. Id. at 1211-12.
Arguments
Defendants argued that the nearby Avalon River was not a "navigable water" regulated by the CWA. Id. at 1215.
The government argued that Avondale Creek's connection with other rivers rendered it a "navigable water" within the meaning of the CWA. Id.
Analysis and Holdings
The CWA generally prohibits the discharge of pollutants into "navigable waters," which are defined as "the waters of the United States, including the territorial seas." Id. The jury in the defendants' case was instructed that "navigable waters" included "any stream which may eventually flow into a navigable stream or river," and that such stream may be man-made and flow "only intermittently," based on case precedent. Id. at 1215-16. However, after the defendants' convictions were handed down, the Supreme Court in Rapanos v. United States, 547 U.S. 715 (2006), indicated that such an expansive definition was no longer valid law. Id. at 1216. The court adopted Justice Kennedy's "significant nexus" test from that opinion as the governing definition of "navigable waters," which stated that navigable waters under the CWA are those that possess a "significant nexus to waters that are or were navigable in fact or that could reasonably be so made." Id. at 1218, 1221. The court then concluded that under the "significant nexus" test, the jury instructions were erroneous and not harmless error, but held that the defendants were merely entitled to new trials rather than judgments of acquittal. Id. at 1222-25. Therefore, the appellate court remanded the case for a new trial using the "significant nexus" test. Id. at 1229.
The case was decided on October 24, 2007.