The Environmental Protection Agency and the U.S. Army Corps of Engineers prosecuted Joseph Robertson for allegedly polluting waters of the United States as a result of a series of ponds he built on land above the small town of Basin, Montana. The prosecution turned on a definition of “waters of the United States” that included land 60 miles away from the nearest navigable river. A jury agreed with this definition, finding the ponds had a “significant nexus” to the river, and convicted Robertson. As amicus, PLF supports Robertson’s appeal, arguing that the court should apply a narrower definition of “waters of the United States” that would exclude the ponds.
Joe Robertson, a 77-year-old Navy veteran in Montana, was prosecuted for violating the Clean Water Act by discharging dredge and fill material into wetlands. He argued that he could not have violated the Clean Water Act because the waters he “discharged” into were ponds he constructed near his home, with no continuous surface water connection to navigable waterways. The nearest navigable river is 40 miles away. He was convicted and sentenced to 18 months in prison, probation, and ordered to pay $130,000 in restitution. Whether this conviction was lawful depends on the definition of “navigable waters.”
In Rapanos v. United States (a PLF case), the Supreme Court sought to define the scope of the Clean Water Act. The Court split on a 4-1-4 vote. Since then, the lower courts have struggled to determine which of those opinions controls the question whether wetlands are “navigable waters.” Justice Kennedy’s concurrence in Rapanos would extend federal jurisdiction to any water that has a “significant nexus” to a traditional navigable water, even in the absence of a direct hydrological connection. That overly broad reading of the Clean Water Act allowed the federal government to prosecute Mr. Robertson for “polluting” waters of the United States by creating ponds to protect his property from fire.
On the other hand, the Rapanos plurality opinion written by Justice Scalia, would authorize federal regulation of only those wetlands physically abutting and indistinguishable from natural rivers, lakes, and streams connected to a traditional navigable waterway. Under the Scalia test, Robertson would have been found not guilty (if charged at all), since the ponds are more than 40 miles away from the river, and do not abut lakes or streams. PLF has asked the U.S. Supreme Court to overturn Robertson’s conviction.