Victory in Clean Water Act appeal

August 07, 2009 | By DAMIEN SCHIFF

Author:    Damien M. Schiff

Last week in Simsbury-Avon Preservation Society v. Metacon Gun Club, the Second Circuit Court of Appeals issued a commonsense decision that the firing of lead bullets over dry land does not violate the Clean Water Act prohibition on the discharge of a pollutant into waters of the United States.  In the case, local activists claimed that a shooting range was a wetland and that spent ammunition was polluting the site and surrounding areas.  But the appeals court agreed with Pacific Legal Foundation, whose attorneys represented the gun club, that the site did not meet the federal definition of wetlands and the plaintiffs had produced no real evidence of any pollution, on- or off-site.  The federal government participated as amicus in the case to advance its interpretation of the Supreme Court’s recent Clean Water Act jurisdictional decision, Rapanos v. United States.  Because the Second Circuit determined that no discharges had occurred on the gun club’s property, the appeals court avoided the Rapanos jurisdictional issues.