U.S. Department of Justice Petitions U.S. Supreme Court to Preserve NPDES Permit Program and Clarify Rapanos

     The U.S. Department of Justice  (DOJ) has filed a petition for a writ of certiorari to review the judgment of the United States Court of Appeals for the Eleventh Circuit in U.S. v. Robison (aka U.S. v. McWane) 505 F.3d 1208 11th Cir (Ala.) Oct. 24, 2007 (Robison)  which overturned a federal District Court's criminal conviction of principals of McWane Corp. for conspiring to knowingly discharge pollutants into the waters of the United States and of a variety of substantive violations of the Clean Water Act (CWA) based on Rapanos v. United States, 547 U.S. 715, 767 (2006) (Kennedy, J.) (Rapanos). The McWane defendants were convicted of discharging massive amounts of untreated industrial wastewater from a manufacturing plant into a stream that flowed year round into other permanent streams that fed into traditional navigable waters in violation of the CWA NPDES permit program. The 11th Circuit Court of Appeals vacated the convictions concluding that the phrase "waters of the United States" in the CWA bears the meaning identified in Justice Kennedy’s opinion in Rapanos. The Court further held that the jury instructions in this case did not embody Justice Kennedy’s standard, and that the instructional error was not harmless. Although the 11th Circuit  acknowledged that the convictions might well have been affirmed under the interpretation of the phrase “waters of the United States” set forth by the four-Justice plurality in Rapanos and that “the decision as to which Rapanos test applies may be outcome-determinative in this case,” the Court declined to decide that issue, and found Justice Kennedy’s opinion controlling, even though the four dissenting Justices in Rapanos made clear that they would find coverage under the CWA based on either the plurality’s or Justice Kennedy’s standard.  The Eleventh Circuit's opinion in  Robison directly conflicts with the First Circuit's opinion in United States v. Johnson, 467 F.3d 56, 64 (1st Cir. 2006), cert. denied, 128 S. Ct. 375 (2007). The dissent in Robison noted that the 11th Circuit majority decision  “gives no legal effect to a standard under which eight [Supreme Court]   Justices would find CWA jurisdiction,” and concerns a matter of “exceptional importance,” As anticipated by some even though Rapanos dealt with CWA 404 dredge and fill permit interpretation of "waters of the United States" , the Court's decision has been applied in the context of CWA §402 NPDES permit program . The ramifications of Rapanos have now become a serious enforcement issue for government. DOJ is arguing that hundreds of NPDES permittees within the 11th Circuit may challenge EPA’s authority to regulate them and new dischargers may decline to obtain permits if the ruling is allowed to stand. Previously the DOJ had opposed petitions for certiorari attempting to get the Supreme Court to clarify Rapanos, but with the threat to the NPDES program posed by Robison, DOJ filed its own petition for certiorari now believing clarification of Rapanos is critical to the integrity of the NPDES program.

     This article was authored by Barbara D. Little, Jackson Kelly PLLC. For more information on the author see here.