This page contains information about recent court decisions, both inside and outside of the Black Warrior watershed, that have important ramifications for the Clean Water Act. Background about this topic is followed by links to websites with more detail. Below those links, we have provided links to three relevant cases (Rapanos, Swank, and Robison).
Since its enactment in 1972, Waterkeeper groups throughout the United States have used the Clean Water Act as the basis for lawsuits aimed at protecting waterways, and citizens who use them, from dangerous pollutants. However, some recent court decisions have effectively undermined the intent of the act and removed its teeth. One of these important cases, decided in the 11th Circuit Court of Appeals, involves McWane, Inc. and their Birmingham cast iron pipe foundry in North Birmingham.
In late October 2007 the court reversed the 2005 convictions of McWane and three company officials on criminal charges related to the illegal discharge of pollutants including oil, lead, and zinc to Avondale Creek, which flows into Village Creek. Village Creek is a main tributary of the Black Warrior River’s Locust Fork. Vague language in the Clean Water Act, especially the definition of what is considered “navigable water,” was the focal point of the decision. The Clean Water Act defines “navigable waters” as “the waters of the United States, including the territorial seas.” McWane’s attorneys argued that Avondale Creek is not “navigable” and therefore not protected by the Act. Prosecutors argued that Avondale Creek should be protected as Village Creek connects the stream to the Locust Fork and the Black Warrior River, which are considered “navigable waters.”
The decision in the McWane case was based on a 2006 ruling by the US Supreme Court in Rapanos et ux., et al. v. United States, in which Justice Kennedy determined that prosecuting parties must prove there is at least a “significant nexus” between the water body in question and a navigable water in order to be considered for protection under the Clean Water Act. The eleventh circuit court stated that while a witness for the prosecution demonstrated a continuous, uninterrupted flow between Avondale Creek and the Black Warrior, prosecutors failed to present evidence proving a “significant nexus” between them. Therefore, the appellate court overturned the 2005 conviction and ordered a new trial for McWane and two of the three company officials.
The decisions in these two cases could have effects reaching far beyond the implications for the parties directly involved. It could mean that unless the required “significant nexus” is established, polluters could discharge harmful wastes and chemicals to small streams such as Avondale Creek without fear of repercussions under the Clean Water Act. This is a scary thought for those who live on or enjoy fishing, swimming, paddling or hiking along the streams that feed our larger rivers and is a perfect example of why Riverkeeper supporters should encourage their representatives in Congress to pass the Clean Water Restoration Act (H.R. 2421), which aims to restore the Clean Water Act’s original intent. To contact officials serving the Black Warrior watershed please visit: www.blackwarriorriver.org/elected-officials.html.
The following links may be helpful for people delving further into this subject:
EPA Rapanos Guidance
http://www.epa.gov/owow/wetlands/pdf/RapanosGuidance6507.pdf
EPA and Army Corps of Engineers Guidance Regarding Clean Water Act Jurisdiction after Rapanos
http://www.epa.gov/EPAFR-CONTENTS/2007/June/Day-08/w11123.htm
CWA Jurisdictional Handbook (Environmental Law Institute)
http://www.eli.org/pressdetail.cfm?ID=162
Clean Water Act Definition of "Waters of the United States"
http://www.epa.gov/owow/wetlands/guidance/CWAwaters.html
Robison Case
