Beveridge & Diamond
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Related Practices

Federal District Judge Voices Frustration With U.S. Supreme Court Over CWA Uncertainty

Beveridge & Diamond, P.C., November 13, 2007

Ever since the Supreme Court failed to articulate a standard for the definition of “waters of the United States” in its infamous 4-1-4 split decision in Rapanos v. United States, landowners and developers around the country have struggled with the most basic questions concerning implementation of the Clean Water Act’s (“CWA”) jurisdictional scope and the Section 404 permitting program. The U.S. Army Corps of Engineers and U.S. EPA were unable to assuage permit applicants with their “too little, too late” joint guidance document, which issued nearly a year after Rapanos was decided and added confusion to an already chaotic situation. Now, a federal district court judge in Alabama has given voice to the frustration of many in a harshly-worded, but internally cogent opinion, that may serve as a wake-up call to the federal judiciary and is sure to be the subject of much controversy.

In United States v. Robison, No. 04-199, 2007 U.S. Dist. LEXIS 83537 (N.D. Ala. Nov. 7, 2007), Senior United States District Judge Robert Propst reassigned to another judge for trial a criminal case involving alleged discharges of pollutants into navigable waters without a permit. Two years earlier, Judge Propst had convicted the defendants in the case of violating Section 402 of the CWA, but the United States Court of Appeals for the Eleventh Circuit recently reversed the convictions citing the Supreme Court’s subsequent treatment of CWA jurisdiction in Rapanos. In remanding the case to the district court for trial, the Eleventh Circuit held that Justice Kennedy’s significant nexus test from Rapanos controlled the jurisdictional issues at bar and instructed Judge Propst to apply this test going forward. On remand, however, Judge Propst drafted a blistering memorandum opinion criticizing both the Supreme Court for its inability to reach a majority consensus in Rapanos and the Eleventh Circuit for co-opting the Kennedy test as binding precedent and directed the court clerk to reassign the case to another judge. To view a copy of the opinion, please click here.

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