If a river doesn’t exist legally, can you pollute it?

Whether or not McWane Pipe for years dumped pollution in the middle of the night in Avondale Creek, a tributary of Village Creek in the Black Warrior River system in Jefferson County, is not being debated in a recent decision by the U.S. Court of Appeals, 11th Circuit.

Company officials have already apologized for their chemical dumping, have reached out to the community to try to make amends, have offered to develop a park in the Norwood neighborhood of Birmingham, and have changed some of their practices.

The court decision questions whether McWane did anything illegal or not due to the disputed definition of “navigable waters” in the Clean Water Act. The Appeals Court says the government did not prove that Avondale Creek is a navigable water or fits within the new standard developed by Supreme Court Justice Kennedy defining navigable waters as those that have a “significant nexus” to waters that can be defined as navigable.

New trial ordered for McWane – Birmingham News 10/25/07

The decision regarding the McWane case could spell disaster for enforcing the Clean Water Act as the burden of proving a creek or stream is covered under the Clean Water Act will fall on the government or citizens who bring enforcement actions.

So, if the river, stream, or wetland doesn’t exist in the eyes of the courts, can you legally pollute it?

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