"Significant Nexus" to "Navigable Waters" Necessary in Clean Water Prosecutions
Abraham Lincoln, following the Union victory at Vicksburg, referred to the Mississippi again flowing “unvexed to the sea.” In Rapanos v. United States, 547 U.S. 715, 126 S.Ct. 2208 (2006), the United States Supreme Court, in a plurality opinion authored by Justice Scalia, elaborated the definition of “navigable waters” under the Clean Water Act (CWA), which is defined under 33 U.S.C. § 1362, as “the waters of the United States, including the territorial seas,” as “relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features' that are described in ordinary parlance as ‘streams... oceans, rivers, [and] lakes,’” id. at 2225. The plurality further held that “navigable waters” are “continuously present, fixed bodies of water, as opposed to ordinarily dry channels th1rough which water occasionally or intermittently flows.” Id. at 2221.
Justice Kennedy, in his concurring opinion, set forth a different test for determining if a water was a “navigable water,” citing the Court’s prior decision in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001)—whether the water or wetland has a “significant nexus” to waters which are or were navigable. Id. at 2236. Justice Kennedy concluded that a water or wetland would satisfy the “significant nexus” test if it “significantly affect[s] the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’” id. at 2248, however the concurrence noted that a mere hydrological connection might be too insubstantial, id. at 2251.
Enter United State v. Robison, 505 F.3d 1208, 1211-12 (11th Cir. 2007) and the McWane iron manufacturing plant in Birmingham, Alabama, and Avondale Creek, which flows into another creek called Village Creek, which flows into Bayview Lake, which is drained by Locust Fork, which flows into the Black Warrior River and thence to the Gulf of Mexico, id. at 1211-12. Officers of the McWane plant were indicted and convicted of conspiracy and CWA violations for allegedly knowing discharging pollutants from the iron manufacturing process into Avondale Creek in violation of the plant’s National Pollutant Discharge Elimination Systems permit. Id. at 1212. However, the district court charged the jury, based on its earlier decision in United States v. Eidson, 108 F.3d 1336 (11th Cir. 1997), that a “navigable water” 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…” Id. at 1215.
On appeal, the Eleventh Circuit joined the Seventh and Ninth Circuit Courts of Appeals in holding that Justice Kennedy; “significant nexus” test provides the governing rule of Rapanos. Id. at 1221. The Court then proceeded to hold that the district court’s instruction was erroneous and that the error was not harmless, noting that no evidence was presented at trial as to any “significant nexus” between Avondale Creek and the Black Warrior River. Id. at 1222-23. The Court reversed and remanded for new trial, id. at 1229, and now it has denied rehearing en banc, United States v. Robison, No. 05-17019, 2008 WL 794982 (11th Cir. 2008).