11th Circuit Court Decides a Perennial Stream is Not Subject to Clean Water Act for a Section 402 Discharge

by Jon Kusler, Esq. Ph.D. - Association of State Wetland Managers, Inc.

On October 24, 2007 the 11th Circuit Court of appeals (Alabama, Georgia, and Florida) overturned the lower, district court Clean Water Act convictions of several individuals for dumping waste water into a stream because the U.S. government had not sufficiently demonstrated that the stream had a "significant nexus" to navigable waters and was, therefore, a "navigable water" of the U.S. and subject to CWA jurisdiction. Rapanos had not been decided when the case was considered by the lower district court so there was no need to explicitly show "significant nexus" in the trial at this level. Just how much evidence government will need to introduce to establish a "significant nexus" in a retrial remains to be seen. It is possible that government will have little difficulty in establishing a "significant nexus" once the actual words "significant nexus" are used in the retrial jury instructions and jury deliberations. Nevertheless, the language of the court in rejecting EPA's expert testimony presented at the district court level as insufficient suggests that this court and perhaps other courts will demand more evidence of hydrologic, biological, or other sorts of connections than government agencies are ordinarily able to supply given limited budgets and staffing.

The full document is available in PDF format and may be viewed and/or downloaded by clicking HERE.

Memorandum Opinion: Judge Propst Post Appeal

"I write this opinion to explain why I will direct the Clerk to reassign this case to another judge for trial. At least one of the reasons is that I am so perplexed by the way the law applicable to this case has developed that it would be inappropriate for me to try it again."

The full document is available in PDF format and may be viewed and/or downloaded by clicking HERE.

Five Post-Rapanos Court Cases Uphold CWA Jurisdiction

by Jon Kusler, Esq. Ph.D. - Association of State Wetland Managers, Inc.

August and September were good months for wetlands and waters in the federal courts. The judges in five federal decisions upheld Clean Water Act jurisdiction in contexts in which jurisdiction had been questionable in light of the U.S. Supreme Court Rapanos and SWANCC decisions.

The full document is available in PDF format and may be viewed and/or downloaded by clicking HERE.

Digest of Significant Decisions Addressing Rapanos

The full document is available in PDF format and may be viewed and/or downloaded by clicking HERE.

National Wildlife Federation Summary of Post-Rapanos and Post-SWANCC Court Decisions

The full document is available in PDF format and may be viewed and/or downloaded by clicking HERE.