## Facts

- McWane, Inc. operated a cast iron pipe manufacturing plant in Birmingham, Alabama that generated industrial wastewater containing pollutants.
- The wastewater was discharged into Avondale Creek, which flows into Village Creek and then into the Black Warrior River.
- The government charged McWane and management employees (including James Delk and Michael Devine) with conspiracy and substantive Clean Water Act (CWA) violations based on alleged untreated or improperly treated discharges and alleged bypassing or disabling of pollution controls.
- The indictment included CWA conspiracy (Count 1) and multiple substantive discharge counts alleging unlawful discharge of pollutants into “navigable waters” without a permit (Counts 2, 3, 5, 7–19, 21, 22).
- McWane was also charged with making a false statement to the EPA (Count 24) based on a written representation about wastewater handling.
- At trial, the district court instructed the jury that “navigable waters” included “any stream which may eventually flow into a navigable stream or river.”
- The trial evidence did not establish that discharges into Avondale Creek actually reached, or significantly affected, the Black Warrior River’s water quality.

## Issues

1. Whether the district court’s definition of “navigable waters” was erroneous after the Supreme Court’s fractured decision in Rapanos and, if so, whether the error was harmless.
2. Whether the evidence was sufficient to sustain McWane’s conviction for making a false statement to the EPA (Count 24).

## Decision

- The court held the “navigable waters” instruction was erroneous under post-Rapanos law because it allowed jurisdiction based on eventual downstream flow without requiring a significant nexus to traditionally navigable waters.
- The court held the government failed to prove the instructional error was harmless because the record lacked evidence directed to the significant-nexus inquiry.
- The court vacated the CWA conspiracy and substantive discharge convictions and remanded for a new trial under a correct jurisdictional instruction.
- The court vacated McWane’s false-statement conviction and directed entry of a judgment of acquittal due to legally insufficient evidence.

## Legal Principles

- When a Supreme Court decision is fractured, the controlling rule is identified under Marks by the position taken on the narrowest grounds supporting the judgment.
- For “waters of the United States” under the CWA after Rapanos, the controlling standard in this case was Justice Kennedy’s “significant nexus” test: coverage depends on whether the water, alone or with similarly situated waters, significantly affects the chemical, physical, or biological integrity of a traditionally navigable water.
- A jury instruction defining CWA jurisdiction by mere eventual hydrologic connection (“may eventually flow”) is overbroad because it omits the required limiting jurisdictional inquiry.
- When an element-bearing jury instruction is wrong, the government bears the burden on appeal to show the error was harmless beyond a reasonable doubt.
- If trial evidence is legally insufficient to prove the elements of a criminal offense, the proper remedy is vacatur with entry of judgment of acquittal, not a new trial.

## Conclusion

The Eleventh Circuit set aside the defendants’ CWA convictions because the jury was instructed on an impermissibly broad definition of “navigable waters” and the record did not establish harmlessness under the controlling significant-nexus standard; it also ordered acquittal on the false-statement count for lack of sufficient proof.


United States v. Robison, 505 F.3d 1208 (11th Cir. 2007)