Eleventh Circuit Issues Reminder that Mere Connection to a "Navigable Water" Is Not Enough Under the Clean Water Act, Overturns Criminal Conviction in Georgia

On December 9, 2020, the Court of Appeals for the Eleventh Circuit overturned the criminal conviction of a Georgia man for dumping over 3,000 gallons of diesel fuel in a parking lot that migrated through a stormwater system into a creek.  United States of America v. Jaron Coleman, No. 19-CR-00043-WLS-TQL-1, 2020 WL 7244923 (11th Cir., Dec. 9, 2020).  Jaron Coleman had pleaded guilty to violating the Clean Water Act and was sentenced to 18 months in prison and ordered to pay a penalty of $5,000.  The Clean Water Act prohibits the discharge of pollutants into “navigable waters” of the United States without a permit; knowingly discharging is a criminal violation of the Act.  The Eleventh Circuit invalidated the Defendant’s guilty plea because the government had not alleged sufficient facts to establish that the diesel fuel had actually impacted a navigable water.

Following a variety of previous iterations, the United States Supreme Court evaluated the meaning of “navigable waters” again in Rapanos v. United States, 547 U.S. 715, 126 S. Ct. 2208 (2006).  There was no majority opinion in that case, but the concurrence found that if a water or wetland possesses a “significant nexus” to waters that are, were or could be actually navigable, then that water is also covered by the Clean Water Act.  The Significant Nexus Test has been very controversial ever since the Rapanos decision, being used to broaden the jurisdiction of the Clean Water Act under the Obama Administration, but being rejected under the Trump Administration.  Both approaches have been challenged in the courts.  Because litigation is ongoing, the enforceability of the Significant Nexus Test was unclear.  Despite the Trump EPA’s recent guidance practically obliterating the test in order to narrow the scope of the Clean Water Act, the Eleventh Circuit in Coleman continued to apply the Significant Nexus Test which it had adopted in 2007.

The Significant Nexus Test requires that a wetland or water significantly affect the chemical, physical and biological integrity of a navigable water, in order to also be considered a navigable water under the Clean Water Act.  The test specifically rejects a mere hydrologic connection.  In Coleman, the government alleged that the diesel fuel flowed from the parking lot into a storm water drainage system, which flowed into an unnamed creek, which was a tributary of another creek, which flowed into a third creek, which then flowed into a river which was a traditionally navigable water of the United States regulated under the Clean Water Act.  Essentially, the government recited a litany of hydrologic connections but did not suggest any facts that might prove that the diesel fuel at any time entered into any water that significantly affected the chemical, physical and biological integrity of a traditionally navigable water.  The Federal Rules of Criminal Procedure require a factual basis of guilt to ensure that a factually innocent defendant does not mistakenly plead guilty.  Therefore, Federal Rule of Criminal Procedure 11(b)(3) required that the Court of Appeals reject the Defendant’s guilty plea, without which there would not have been a conviction.  Instead, the Court vacated the conviction and sentence and returned the case to the lower District Court for further proceedings.