Eleventh Circuit Interprets Rapanos Definition Of "Navigable Waters”

Oct 24: In the case of USA v. Robison, in the U.S. Court of Appeals, Eleventh Circuit, Case No. 05-17019. Defendants McWane, Inc. (McWane), James Delk (Delk), and Michael Devine (Devine) appeal their convictions for their roles in a Clean Water Act (CWA) conspiracy (Count 1), as well as their convictions for substantive violations of the CWA (Counts 2, 3, 5, 7-19, 21, and 22). After the defendants’ convictions, the United States Supreme Court addressed how to define “navigable waters” under the CWA in Rapanos v. United States [See link below].

The Appeals Court ruled, "The definition of 'navigable waters' in the jury charge in this case was erroneous under Rapanos, and the government has not shown that the error was harmless. Accordingly, we must vacate defendants’ CWA convictions and remand the case for a new trial." The Appeals Court also said that McWane appeals its conviction for making a false statement to the Environmental Protection Agency (EPA) (Count 24). Because McWane was entitled to a judgment of acquittal on that charge, we vacate McWane’s conviction on Count 24 as well."

In the case, the parties agree that the definition of “navigable waters” is a key element of the CWA criminal offenses in this case. Based on the Supreme Court’s Rapanos decision, defendants contend that a key discharge point, Avondale Creek, is not a “navigable water” within the meaning of the CWA, and that the district court erroneously instructed the jury as to the definition of the term “navigable waters.” The district court charged the jury that “navigable waters” include “any stream which may eventually flow into a navigable stream or river,” and that such stream may be man-made and flow “only intermittently.”

The Appeals Court said the district court's jury charge relied on the definitions in United States v. Eidson, 108 F.3d 1336 (11th Cir. 1997), however the defendants’ trial occurred before Rapanos, and the Supreme Court indicated in Rapanos that Eidson’s “expansive definition” of "tributaries," "is no longer good law." The Appeals Court said, "Accordingly, we consider Rapanos in detail in order to determine exactly how and to what extent the district court’s 'navigable waters' instruction was erroneous. We then consider whether the incorrect jury instruction was harmless error."

In interpreting Rapanos, the Eleventh Circuit said, "The entire Supreme Court agreed that the term 'navigable waters' encompasses something more than traditionally 'navigable-in-fact' waters... However, five Justices concluded that remand was necessary for consideration of whether the wetlands at issue were 'navigable waters' covered by the CWA, and whether the EPA and the Army Corps of Engineers had impermissibly extended their regulatory authority under the CWA. The Eleventh Circuit analyzes in some detail the Rapanos decision in three parts including: Justice Scalia’s plurality opinion; Justice Kennedy’s concurrence; and Justice Stevens’s dissent.

The Eleventh Circuit says the various appeals court circuits are also split on the question of "which Rapanos opinion provides the holding." They say both the Seventh and the Ninth Circuits concluded that Justice Kennedy’s concurrence controls and adopted the “significant nexus” test. But, they said the First Circuit, on the other hand, concluded that because the dissenting Rapanos Justices would find jurisdiction under either Justice Scalia’s plurality test or Justice Kennedy’s “significant nexus” test, “'the United States may elect to prove jurisdiction under either test.'"

The Appeals Court concludes, "in determining the governing holding in Rapanos, we cannot disconnect the facts in the case from the various opinions and determine which opinion is narrower in the abstract. Thus, pursuant to Marks, we adopt Justice Kennedy’s 'significant nexus' test as the governing definition of 'navigable waters' under Rapanos. See Gerke, 464 F.3d at 725; River Watch II, 496 F.3d at 999-1000."

Next the Appeals Court considered whether the district court’s jury charge comported with Justice Kennedy’s “significant nexus” test. Restating that, "under Justice Kennedy’s concurrence, a water can be considered 'navigable' under the CWA only if it possesses a 'significant nexus' to waters that 'are or were navigable in fact or that could reasonably be so made...' Moreover, a 'mere hydrologic connection' will not necessarily be enough to satisfy the 'significant nexus' test." The Eleventh Circuit then rules that, "The district court here did not mention the phrase 'significant nexus' in its 'navigable waters' instruction to the jury... Rather, the district court instructed the jury that a continuous or intermittent flow into a navigable-in-fact body of water would be sufficient to bring Avondale Creek within the reach of the CWA. As such, the instruction did not satisfy Justice Kennedy’s “significant nexus” test and was erroneous..."

Access the complete opinion (click here). Access WIMS eNewsUSA Blog for various articles related to Rapanos (click here). Access various eNewsUSA blog posts related to the Rapanos decision (click here). [*Water]