“abuse of discretion.” The U.S. Court of Appeals for the Fifth Circuit found no abuse of discretion. For wetlands to be subject to the Clean Water Act, there must be a “significant” connection between the wetlands and
CHAPTER 45: ENVIRONMENTAL LAW 119 navigable-in-fact water. In this case, the drainage from the mobile-home lots, which met the definition of wetlands, ran in three directions, all of which led to navigable waters. The jury had been instructed about this connection, and the prosecution had offered proof that established it. .................................................................................................................................................. Notes and Questions Would the result in this case have been different if the quality of the water flowing from the land improved before running into navigable waters? Probably not, because the applicable standards and definitions relating to “wetlands” do not rely on the actual quality of the water before and after its flowing or drainage. It was the run-off and the risk that it might result in pollution that established the need for a permit or certification and initiated the orders and indictments in this case. Would the court have ruled differently if the drainage or flowing had been into international or foreign waters rather than into the waters of the United States? Probably not, although that fact might have added more law to consider. The land in this case was subject to the U.S. federal permit and Mississippi state certification regimes. If those facts remained the same, the court would still have had to review and apply those laws. A NSWER TO “W HAT I F THE F ACTS W ERE D IFFERENT ?” IN C ASE 45.2 Assume that during most of the year, there was a solid strip of land around the property in question that remained completely dry. Would the outcome of this case have been the same? Why or why not? Much would depend on what percentage of the year that the strip of land around the property in question was actually dry. If it were dry for 95 percent of the year, the outcome of this case probably would have been different. If it were dry only 50 percent of the year, then the outcome probably would not have changed. A NSWER TO “T HE E THICAL D IMENSION ” Q UESTION IN C ASE 45.2 Does it seem appropriate to put businesspersons in prison when they violate the Clean Water Act? Explain your answer. Increasingly, businesspersons who violate environmental, consumer, health and safety laws and regulations find themselves subject to not only fines but to prison terms. Whether prison terms are an appropriate response to such violations is clearly debatable. To be sure, the more such prison terms are publicized, the more deterrent effect we will observe on other businesspersons’ behavior. Some
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