Eleventh Circuit Uses “Significant Nexus” Test

SandBar Printer-Friendly Article
SandBar 6:4, January, 2008 Eleventh Circuit Uses “Significant Nexus” Test United States v. Robison, 2007 U.S. App. LEXIS 24825 (11th Cir. Oct. 24, 2007). *Terra Bowling, J.D.* The Eleventh Circuit vacated a district court’s conviction of a company and several members of management for conspiracy to violate and violations of the Clean Water Act (CWA). The court held that in light of the Supreme Court’s recent decision in Rapanos the district court’s jury instructions on “navigable waters” was inaccurate and erroneous. Background McWane is a manufacturer of cast iron pipe, flanges, valves, and fire hydrants. At its plant in Birmingham, Alabama, the company discharges wastewater into Avondale Creek. The CWA generally prohibits the discharge of pollutants into navigable waters. However, the CWA authorizes the EPA or states approved by the EPA to issue permits for the discharge of pollutants pursuant to a National Pollutant Discharge Elimination System (NPDES). McWane had an NPDES permit issued by the Alabama Department of Environmental Management (ADEM) that allowed the company to discharge some treated wastewater from one discharge point at the plant, as long as it met certain requirements. However, evidence showed that the company discharged wastewater into the creek from several unauthorized discharge points. The permit also allowed the discharge of stormwater runoff from specified stormwater discharge points. Polluted wastewater was spilling into stormwater run off points and flowing into Avondale Creek. The company and several of the company’s employees were indicted, including several managers - James Delk, Michael Devine, and Charles Robison - and Donald Bills, the plant engineer. At trial, several McWane employees offered evidence of the violations. The district court dismissed Bills from the case, and the rest were convicted of various offenses. McWane, Delk, and Devine appealed their convictions. Navigable Waters On appeal, McWane, Delk, and Devine (appellants) argued that Avondale Creek did not meet the definition of “navigable waterway” under the CWA and, therefore, they did not violate the CWA. The Eleventh Circuit noted that the Supreme Court had interpreted the term “navigable waters” in Rapanos while this appeal was pending; therefore, the court looked at whether the district court used the correct definition of navigable waterways. The Rapanos decision, a plurality decision, did not provide a clear test for lower courts to use when determining whether a body of water is a “navigable waterway.” Justice Scalia’s opinion would require navigable waters to be “relatively permanent, standing or flowing bodies of water,” and have a “continuous surface connection.”1 Justice Kennedy’s concurring opinion would require a “significant nexus” between a water or wetland and another water that is or was navigable in fact or could reasonably be made so. The circuit courts are split over which opinion to use. The Seventh and Ninth Circuits have used Kennedy’s opinion, while the First Circuit has said that either test may be used. In this instance, the appellants argued that Kennedy’s “significant nexus” test should be used, while the government argued that either test could apply. The Eleventh Circuit looked at the reasoning used by the circuit courts in reaching their conclusion. Citing U.S. v. Gerke, a Seventh Circuit case heard after the Rapanos decision, the Eleventh Circuit noted that “when a majority of the Supreme Court agrees only on the result of a case, lower courts ‘are to follow the narrowest ground to which a majority of the Justices would have assented if forced to choose.’”2 The Gerke court believed that Justice Kennedy’s test would be the narrowest ground. Therefore, the Eleventh Circuit concluded that Kennedy’s significant nexus test should be the governing definition of navigable waterway. Jury Instruction In the district court, the jury did not mention the phrase “significant nexus” in its “navigable waters” instruction to the jury or instruct the jury to consider the chemical, physical, or biological effect of Avondale Creek on the Black Warrior River. The court held that because the instruction did not include Justice Kennedy’s “significant nexus” test, it was erroneous. The court therefore vacated the district court’s judgment, reversed the convictions, and remanded the case. Endnotes 1. Rapanos v. United States, 126 S. Ct. 2208 at 2242-44 (U.S. 2006). 2. United States v. Robison, 2007 U.S. App. LEXIS 24825 (11th Cir. Oct. 24, 2007).
Phone (662) 915-7775 • Fax (662) 915-5267 • 256 Kinard Hall, Wing E, University, MS 38677-1848

SandBar 6:4, January, 2008

United States v. Robison, 2007 U.S. App. LEXIS 24825 (11th Cir. Oct. 24, 2007).

Terra Bowling, J.D.

The Eleventh Circuit vacated a district court’s conviction of a company and several members of management for conspiracy to violate and violations of the Clean Water Act (CWA). The court held that in light of the Supreme Court’s recent decision in Rapanos the district court’s jury instructions on “navigable waters” was inaccurate and erroneous.

Background
McWane is a manufacturer of cast iron pipe, flanges, valves, and fire hydrants. At its plant in Birmingham, Alabama, the company discharges wastewater into Avondale Creek. The CWA generally prohibits the discharge of pollutants into navigable waters. However, the CWA authorizes the EPA or states approved by the EPA to issue permits for the discharge of pollutants pursuant to a National Pollutant Discharge Elimination System (NPDES).
McWane had an NPDES permit issued by the Alabama Department of Environmental Management (ADEM) that allowed the company to discharge some treated wastewater from one discharge point at the plant, as long as it met certain requirements. However, evidence showed that the company discharged wastewater into the creek from several unauthorized discharge points. The permit also allowed the discharge of stormwater runoff from specified stormwater discharge points. Polluted wastewater was spilling into stormwater run off points and flowing into Avondale Creek.
The company and several of the company’s employees were indicted, including several managers - James Delk, Michael Devine, and Charles Robison - and Donald Bills, the plant engineer. At trial, several McWane employees offered evidence of the violations. The district court dismissed Bills from the case, and the rest were convicted of various offenses. McWane, Delk, and Devine appealed their convictions.

Navigable Waters
On appeal, McWane, Delk, and Devine (appellants) argued that Avondale Creek did not meet the definition of “navigable waterway” under the CWA and, therefore, they did not violate the CWA. The Eleventh Circuit noted that the Supreme Court had interpreted the term “navigable waters” in Rapanos while this appeal was pending; therefore, the court looked at whether the district court used the correct definition of navigable waterways.
The Rapanos decision, a plurality decision, did not provide a clear test for lower courts to use when determining whether a body of water is a “navigable waterway.” Justice Scalia’s opinion would require navigable waters to be “relatively permanent, standing or flowing bodies of water,” and have a “continuous surface connection.”1 Justice Kennedy’s concurring opinion would require a “significant nexus” between a water or wetland and another water that is or was navigable in fact or could reasonably be made so. The circuit courts are split over which opinion to use. The Seventh and Ninth Circuits have used Kennedy’s opinion, while the First Circuit has said that either test may be used.
In this instance, the appellants argued that Kennedy’s “significant nexus” test should be used, while the government argued that either test could apply. The Eleventh Circuit looked at the reasoning used by the circuit courts in reaching their conclusion. Citing U.S. v. Gerke, a Seventh Circuit case heard after the Rapanos decision, the Eleventh Circuit noted that “when a majority of the Supreme Court agrees only on the result of a case, lower courts ‘are to follow the narrowest ground to which a majority of the Justices would have assented if forced to choose.’”2 The Gerke court believed that Justice Kennedy’s test would be the narrowest ground. Therefore, the Eleventh Circuit concluded that Kennedy’s significant nexus test should be the governing definition of navigable waterway.

Jury Instruction
In the district court, the jury did not mention the phrase “significant nexus” in its “navigable waters” instruction to the jury or instruct the jury to consider the chemical, physical, or biological effect of Avondale Creek on the Black Warrior River. The court held that because the instruction did not include Justice Kennedy’s “significant nexus” test, it was erroneous. The court therefore vacated the district court’s judgment, reversed the convictions, and remanded the case.

Endnotes
1. Rapanos v. United States, 126 S. Ct. 2208 at 2242-44 (U.S. 2006).
2. United States v. Robison, 2007 U.S. App. LEXIS 24825 (11th Cir. Oct. 24, 2007).