Petition for Writ of Certiorari — Lucas v. United States (No. 07-1512)

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ROBERT J. LUCAS, JR., ET AL., PETITIONERS

UNITED STATES OF AMERICA, RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

PHILLIP A. WITTMANN GENE C. SCHAERR

DARIA BURGESS DIAZ Counsel of Record

Stone Pigman Walther JOHN FEHRENBACH

Wittman LLC LUKE W. GOODRICH

546 Carondelet Street MICHAEL BHARGAVA

New Orleans, LA 70130 Winston & Strawn LLP

(504) 581-3200 1700 K Street, NW

Washington, DC 20006

STUART ALTSCHULER (202) 282-5000

LINDA T. COBERLY

Winston & Strawn LLP

35 West Wacker Drive

Chicago, Ilnais 60601

(312) 558-5600

Counsel for Petitioners

[Additional counsel listed on inside cover]

Witson-Epes Printine Co., Inc. — (202) 788-0086 — WasHiInGcTon, D.C. 20002

TIM C. HOLLEMAN

Boyce Holleman &

Associates

11240 Hwy 49 N.,

Ste. 400-D

Gulfport, MS 39503

(228) 539-6000

W. F. HOLDER

400 East Railroad St.

Long Beach, MS 39560

228-863-4999

QUESTIONS PRESENTED

1. In applying Rapanos v. United States, 547 US.

715 (2006), to determine federal jurisdiction over wet-

lands under the Clean Water Act, are federal courts

bound to apply the analysis of the plurality decision,

the concurrence, or some other standard?

2. Under whichever approach the Court chooses,

did the Fifth Circuit err in holding that federal juris-

diction under the Act extends to a wetland that

merely “neighbors” a “tributary” of a navigable water,

without requiring that the wetland have a continuous

surface connection with a relatively permanent body

of water, or that it significantly affect the quality of

traditional navigable waters?

3. Is an ordinary residential septic system a “point

source” under the Act, and if so, can one who designs

or certifies the system but neither owns nor operates

it be held criminally lable for its discharges?

PARTIES TO THE PROCEEDINGS

Petitioners Robert J. Lucas, Jr., Robbie Lucas Wrig-

ley, Big Hill Acres, Inc., Consolidated Investments,

Inc., and M.E. Thompson, Jr. were defendant:

appellants in the court below. Big Hill Acres, Inc. is

wholly owned by petitioner Robert J. Lucas, Jr. It

has no parent companies, subsidiaries, or affiliates

that have issued shares to the public. Consolidated

Investments, Inc. is wholly owned by petitioner,

Robert J. Lucas, Jr. It has no parent companies, sub-

sidiaries, or affiliates that have issued shares to the

public.

The United States Government was the plaintiff-

appellee in the court below. There are no other par-

ties.

TABLE OF CONTENTS

Page(s)

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STATUTORY AND

REGULATORY PROVISIONS INVOLVED......... 2

RE SESE ANS eter see re Ce aOR 4

REASONS FOR GRANTING THE PETITION ....... 13

I. Review Is Needed To Resolve A Mature And

Acknowledged Circuit Conflict Over the

Proper Standard for Determining

Jurisdiction Under the Clean Water Act......... 14

II. Review Is Needed To Overturn The Fifth

Circuit’s Misinterpretation Of Both The Ra-

panos Plurality And Concurrence, And The

Resulting Expansion Of Federal Jurisdiction

a uae 20

III. Review Is Needed To Correct The Fifth

Circuit’s Erroneous And Expansive

Interpretation Of Section 402 Regarding

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TABLE OF AUTHORITIES

CASES PaGE(s)

Friends of Sakonnet v. Dutra,

738 F. Supp. 623 (D. R.I. 1990)...................0.0...... 33

Marks v. United States,

We ovata kcveins savsetenvaavvecssiedess passim

Minnesota Center for Environmental Advocacy

v. U.S. Environmental Protection Agency,

2005 WL 1490331 (D. Minn. 2005) .............0..0..... 27

Newton County Wildlife Ass'n v. Rogers,

DAY FO Gos ee Cit. 1008)....:.0......0005.00..00000..,..5 30

Nichols v. United States,

Be er I rocco ceccts bersceoneccepsocssevesncroncyscnce 16

Northern California River Watch v. City of

Healdsburg,

496 F.3d 993, 999 (9th Cir. 2007)... eee 15

Rapanosv. United States,

BE A Fe I oiicesockcnsnsesecsnscescssossenessses passim

Sierra Club v. El Paso Gold Mines, Inc.,

421 F.3d 1133 (10th Cir. 2008).....................sccc000 31

Solid Waste Agency v. United States Army Corps

of Eng’rs,

I a. sc buatvdvcoecsbsnesyancternaass 5

United Statesv. Bass,

a nn cucuaekdevanwsvwinnawoun> 29

United States v. Chevron Pipe Line Co.,

437 F. Supp. 2d 605 (N.D. Texas 2006)................ 16

United States v. Gerke Excavating, Inc.,

464 F.3d 723 (7th Cir. 2006)..........000....0000000- 14, 15

United States v. Hagberg,

207 F.4d 569 Oth Cir. 2000)...............c0cssccesesoserass 29

United States v. Johnson,

467 F.3d 56 (1st Cir. 2006) ...............ccccceeeeeee 15, 16

United States v. Lanier,

a. sc scss tusvesassmbadsbunenncs 29

United States v. Needham (In re Needham),

354 F.3d 340 (5% Cir. 2003)....0..0... eee ceeecceeeee ones 16

United States v. Plaza Health Laboratories, Inc.,

pe fs LoS |. ec aaae 29

United States v. Riverside Bayview Homes, Inc.,

Be Bs Fe CI viehv inns ihcvinde cdesesetassseverexerscctans 5, 6

United States v. Robison,

505 F.3d 1208 (11th Cir. 2007).......00..00.cceee 15, 16

STATUTES AND REGULATIONS

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Le oS Eo || Sera eee apices 30

MOGI DS Pe Fike ees 3,9

54 Fed. Reg. 18,716, 18,718 (1989)............:ccccseeeees 29

OTHER AUTHORITIES

Opening Statement By Chairman James L.

Oberstar, House Committee on

Transportation and Infrastructure, Hearing

on the Clean Water Restoration Act, (Apr.

16, 2008), at 5, http://transportation. house.

gov/Media/File/Full%20Committee/20080416

FI oi sas biccincdioicsbasediadenaiaeds 18

U.S. General Accounting Office, Report to the

Chairman, Subcommittee on Energy Policy,

Natural Resources and Regulating Affairs,

Committee on Government Reform, House of

Representatives, Waters and Wetiands-

Corps of Engineers Needs to Evaluate Its

District Office Practices in Determining

Jurisdiction, GAO-04-297 (Feb. 2004), at

http://www.gao.gov/new.items/d04297.pdf. ........ 17

USEPA, Decentralized Wastewater Treatment

Systems: A Program Strategy (Jan. 2005)

(available at

http://www.epa.gov/owm/septic/pubs/septic_p

IR MEARE... cov'caverncsnsschseseenssnventneises 3

INTRODUCTION

This case gives the Court an opportunity to resolve

a serious and acknowledged conflict among the courts

of appeals over the proper legal standard governing

federal jurisdiction over wetlands. In the wake of

this Court’s decision in Rapanosv. United States, 547

U.S. 715 (2006), the federal circuits have split over

which opinion controls — the plurality, the concur-

rence, or either of them. Indeed, in addressing this

issue, the circuits have divided on the fundamental

question of how and even whether to apply the prin-

ciples in Marks v. United States, 430 U.S. 188 (1977),

which normally governs the interpretation of frac-

tured decisions. The confusion has led to inconsistent

and arbitrary enforcement of the Act and uncertainty

over what conduct it prohibits — thereby subjecting

landowners nationwide to a vastly increased risk of

civil liability and, as in this case, criminal prosecu-

tion and incarceration.

This case also provides the Court with an opportu-

nity to correct two sweeping extensions of the Act into

areas traditionally -egulated by the States. For one

thing, the decision below held that, under Rapanos,

jurisdiction under the Act extends to any wetland

that “neighbors” a “tributary” of a traditional naviga-

ble waters — even without evidence of a continuous

surface connection between the wetland and a rela-

tively permanent body of water, as the plurality re-

quires, and even without evidence that the wetland

significantly affects the quality of traditional naviga-

ble waters, as the concurrence requires. Untethered

from these critical requirements, the Fifth Circuit's

’ approach would likely extend the Act to virtually all

wetlands nationwide.

Also, in direct contravention of the governing regu-

lations and public pronouncements of the Environ-

mental Protection Agency (EPA), the Fifth Circuit in-

terpreted the Act to apply to the discharge of pollut-

ants from ordinary residential septic systems — for

the first time subjecting millions of individual home-

owners to potential criminal and civil liability for

malfunctioning septic systems. Even worse, the court

held that the risk of criminal liability extends not

only to the owner or operator of a septic system, but

to any party who designs, certifies, or installs such a

system. The combination of these rulings drastically

expands the reach of the Clean Water Act into areas

of traditionally state and local control.

OPINIONS BELOW

The Fifth Circuit’s opinion is reported at 516 F.3d

316 (5th Cir. 2008) and reprinted at Pet. App. la-63a.

The district court’s orders denying the defendants’

pre-verdict motions to dismiss are unreported and are

reprinted at Pet. App. 66a°74a.

JURISDICTION

The court of appeals entered its judgment on Feb-

ruary 1, 2008. Pet. App. 1a-63a. Petitioners timely

filed a petition for rehearing en banc on February 15,

2008. The Fifth Circuit treated the petition as a peti-

tion for panel rehearing and denied rehearing on

March 4, 2008. Pet. App. 64a-65a. This Court has

jurisdiction pursuant to 28 U.S.C. § 1254(1).

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

The Federal Water Pollution Control Act (“Clean

Water Act”), 33 U.S.C. § 1251 et seg., prohibits, ex-

cept in compliance with specified provisions of the

Act, the “discharge of any pollutant” into “navigable

waters.” 33 U.S.C. § 1311(a). The Act defines “navi-

gable waters” as “the waters of the United States, in-

cluding the territorial seas.” 33 U.S.C. § 1362(7).

“Discharge of a pollutant” includes “any addition of

any pollutant to navigable waters from any point

source.” 33 U.S.C. § 1362(12)(A). “Point source”

means “any discernible, confined and discrete con-

veyance, including but not limited to any pipe, ditch,

channel, tunnel, conduit, well, discrete fissure, con-

tainer, rolling stock, concentrated animal feeding op-

eration, or vessel or other floating craft, from which

pollutants are or may be discharged.” 33 U.S.C.

§ 1362(14).

Section 404 of the Act authorizes the Secretary of

the Army, acting through the U.S. Army Corps of En-

gineers, to “issue permits, after notice and opportu-

nity for public hearings for the discharge of dredged

or fill material into the navigable waters at specified

disposal sites.” 33 U.S.C. § 1344({a).

Section 402 of the Act authorizes the EPA, as well

as states with EPA-approved programs, to issue per-

mits for the discharge of pollutants as part of the Na-

tional Pollutant Discharge Elimination Systera

(“NPDES”). 33 U.S.C. § 1342.

EPA has defined the scope of the NPDES permit

requirement, 40 C.F.R. § 122.1(b), and has explained

which party has the duty to apply for a permit:

“When a facility or activity is owned by one person

but is operated by another person, it is the operator’s

duty to obtain a permit.” 40 C.F.R. § 122.21(b).

Section 309 of the Act imposes criminal liability on

any person who discharges a pollutant without a per-

mit. 33 U.S.C. § 1319(C).

All of these provisions are set out in full in the Ap-

pendix.

STATEMENT

Petitioners Robert J. Lucas, Robbie Lucas Wrigley,

M.E. Thompson, Jr., Big Hill Acres, Inc., and Con-

solidated Investments, Inc. were convicted under Sec:

tions 402 and 404 of the Clean Water Act (“CWA” or

“Act”), 33 U.S.C. §§ 1342 and 1344, for filling wet-

lands without a permit and for installing single-

family residential septic systems without National

Pollutant Discharge Elimination System (“NPDES”)

permits. All petitioners were subjected to multi-

million dollar fines, and the individual petitioners

were sentenced to, and are now serving, seven to nine

years 1n prison.

1. This Court’s Decision in Rapanos. Because two of

the three questions presented turn on the meaning

and effect of the various opinions in Rapanos, we be-

gin with a brief summary of that case. The plaintiff

in Rapanos owned 54 acres of occasionally saturated

land located approximately 11 miles away from the

nearest navigable water. 547 U.S. at 720. Despite

the distance, the U.S. Army Corps of Engineers at-

tempted to exercise jurisdiction over the property on

the ground that it constituted “waters of the United

States” under the CWA Jbid Affirming the Corps’s

exercise of jurisdiction, the Sixth Circuit held that

“waters of the United States” included wetlands adja-

cent to non-navigable tributaries of traditional navi-

gable waters. /d. at 729-30.

Although this Court reversed, no opinion com-

manded a majority. A four-Justice plurality defined

“waters of the United States” as “only those relatively

permanent, standing or continuously flowing bodies

of water forming geographic features,” such as

streams, oceans, rivers, or lakes. Jd at 739. Accord-

ing to the plurality, wetlands are subject to CWA ju-

risdiction only if they are “adjacent” to such waters —

that is, they have a “continuous surface connection

with that water, making it difficult to determine

where the ‘water’ ends and the ‘wetland’ begins.” /d.

at 742 (emphasis added). Thus, jurisdiction would

not extend to wetlands adjacent to channels “through

which water flows intermittently or ephemerally, or

channels that periodically provide drainage for rain-

fall.” bid.

In a concurring opinion, Justice Kennedy inter-

preted the phrase “waters of the United States” to in-

clude any wetlands with a “significant nexus” to

navigable waters. /d. at 759 (Kennedy, J, concurring)

(citing Solid Waste Agency v. United States Army

Corps of Eng’rs, 531 U.S. 159 (2001)). Such a nexus

may be found “if the wetlands, either alone or in com-

bination with similarly situated lands in the region,

significantly affect the chemical, physical, and bio-

logical integrity of other covered waters more readily

understood as ‘navigable.” Jd at 780 (emphasis

added). No nexus exists, however, when the “wet-

lands’ effects on water quality are speculative or in-

substantial.” Jbid.

Four Justices dissented, arguing for a broader view

of CWA jurisdiction than either the plurality or the

concurrence. /d. at 787-88. According to the dissent,

CWA jurisdiction should extend to all wetlands “adja-

cent to but not regularly flooded by rivers, streams,

and other hydrographic features more conventionally

identifiable as ‘waters.” Jd. (quoting Riverside Bay-

view, 474 U.S. at 131). The dissent indicated it would

also uphold jurisdiction “in all other cases in which

either the plurality’s or Justice Kennedy’s test is sat-

isfied.” Jd. at 810.

In a concurring opinion, Chief Justice Roberts la-

mented the Court’s failure to provide lower courts

with clearer guidance. As he predicted, in the ab-

sence of a majority opinion, “lower courts and regu-

lated entities ...now have to feel their way on a

case-by-case basis.” Jd. at 758.

2. The Development at Issue. This case began in

1994, when petitioner Robert J. Lucas and the two

corporate petitioners began purchasing land from

timber companies and selling lots at a development

known as Big Hill Acres. The development is located

in rural Jackson County, Mississippi approximately

eight miles north of the Gulf of Mexico. It is undis-

puted that there are no navigable waters on or adja-

cent to the development. Rather, the development

drains into non-navigable, intermittent tributaries,

ditches, and drainage swales. Pet. App. 116a, lla-

12a. As the district court found, there was “no...

evidence that any of the water from Big Hill Acres

ever really reache[d] a navigable body of water,” the

closest of which is over two miles away. Jd. 117a.

Moreover, like most rural areas throughout the

United States, this area of Jackson County does not

offer central sewer service. Each lot therefore re-

quired a separate septic system. Before 1997, Lucas

relied exclusively on the Mississippi Department of

Health to design and approve Big Hill Acres’ septic

systems. After designing and approving 200 septic

systems, the Department notified Lucas in December

1996 that it was withdrawing 150 of its designs and

approvals. Unable to rely any longer on Department

designs and approvals, Lucas retained a Mississippi

licensed professional engineer, petitioner M.E.

Thompson, Jr., to design septic systems on individual

lots. Mississippi law allows either the Department or

a licensed professional engineer to design residential

septic systems.

The septic systems designed by Thompson worked

well. The Department confirmed that the rate of sep-

tic system malfunction at Big Hill Acres was well be-

low the average septic system failure rate for Jackson

County. Trial Transcript (“Tr.”) 929-30. While there

was some evidence of septic system malfunctions, the

Department acknowledged that over half of all septic

system failures or malfunctions can be attributed not

to design error, but to improper maintenance. /d. at

986-87.

No state or local agency ever notified petitioners

that any of the septic systems at Big Hill Acres re-

quired a state or federal NPDES permit.

3. Corps and EPA Involvement. A representative

from the U.S. Army Corps of Engineers first in-

spected Big Hill Acres in 1996 after a large portion of

the development had been completed. The August

1996 Corps’ report documenting the inspection found

no waterway on Big Hill Acres an¢ uoted no violation

of CWA Section 404. U.S. Army Corps of Engineers

Report, Government Exh. 89. It is undisputed that

the closest navigable water is over two miles from the

development.

Almost three years after the Corps’ 1996 inspection,

the Corps returned to Big Hill Acres and asked

Robert Lucas to delineate all wetlands on the devel-

opment. In 1999 the Corps’ policy was that all wet-

lands, regardless of their location or proximity to

navigable waters, were subject to regulation under

the CWA. Lucas complied with the Corps’ request

and immediately hired a former Corps wetland expert

to delineate all wetlands at Big Hill Acres. In June

1999, before the painstaking delineation could be

completed, the Corps ordered Lucas to cease and de-

sist from placing dredged or fill material into wet-

lands without a Section 404 permit. Less than a

month later, the EPA, which has concurrent jurisdic-

tion with the Corps under Section 404, issued its own

cease and desist order, which was in all material re-

spects identical to the one issued by the Corps.

Both the Corps and the EPA communications ad-

dressed only the development and sale of Big Hill

Acres wetlands property. The agencies never cited or

warned petitioners that the residential septic systems

on individual lots also required an NPDES permit

under Section 402 of the CWA. Petitioners first

learned of the Government’s position that the resi-

dential septic systems required a permit when the

indictment issued.

4. Trial Court Proceedings. Petitioners were

charged with violating Section 404 of the Act for fill-

ing wetlands without 2 permit, and Section 402 for

failing to obtain NPDES permits for residential septic

systems installed on individual lots. Petitioners were

also charged with mail fraud and conspiracy for sell-

ing lots containing wetlands and saturated soils. As

the district court recognized, al/ of the charges de-

pended upon a finding that the wetlands at Big Hill

Acres were subject to jurisdiction under the CWA.

Pet. App. 118a.

The Government’s jurisdictional argument turned

on the alleged hydrologic connection between those

wetlands and navigable waters located several miles

away. As the court described it, the government’s

principal theory was “that ditches and drainage

swales, intermittent tributaries and the like are

tributaries of Section 10 waters and, as such, are pro-

tected under the Clean Water Act as they down-

stream c*mnect with navigable bodies of water.” Jd.

at 116a (emphasis added).

Before the trial began, petitioners moved to dismiss

the Section 404 counts on grounds of lenity and due

process. As petitioners asserted, confusion over the

scope of CWA jurisdiction had resulted in division in

the lower courts and inconsistent and discriminatory

enforcement by federal agencies. The Act therefore

gave insufficient notice that petitioners’ conduct

might be subject to criminal sanctions. However, the

district court denied the motion based on an absence

of clear authority from the Fifth Circuit or this Court.

Pet. App. 69a.

Petitioners also moved to dismiss the Section 402

charges, arguing that the Government had failed to

charge an offense because NPDES permits are not

required for residential septic systems. Petitioners

pointed out that (1) neither the CWA nor its regula-

tions define an individual residential septic system as

a point source; and (2) the EPA has consistently

maintained that individual septic systems (even if

they malfunction) are not point sources and thus do

not require an NPDES permit. Finally, petitioners

showed that, even if an NPDES permit were re-

quired, it was not their duty to obtain one because

they neither owned, operated, nor controlled the sep-

tic systems at issue. See 40 C.F.R. § 122.21(b).

The court denied the motions on the ground that

there were disputed issues of fact, including (1)

“whether the named Defendants were responsible for

or exempt from obtaining permits for discharging pol-

lutants,” and (2) “whether pollutants were discharged

from a point source directly into wetlands that are

waters of the United States.” Pet. App. 67a.

At the conclusion of the Government's case, peti-

tioners moved for acquittal on all counts. The court

initially granted the petitioners’ motion on five of the

Section 402 counts, finding insufficient evidence to

support the theory that petitioners themselves had

discharged a pollutant from the septic systems:

“There was no evidence that ... any of these defen-

dants actually added the effluent or pollutant into the

ground. ... This is a serious criminal matter. It’s

not a civil case.... And I think there must be some

evidence that meets that essential element of the of-

fense. And it is not here.” Pet. App. 119a, 123a (em-

phasis added). Following a weekend recess, however,

the court reversed the judgment of acquittal — not on

the ground that its earlier ruling was incorrect, but

because it was convinced that a reversal was neces-

sary to preserve the Government’s ability to appeal.

Id. at 127a.

The court reserved its ruling on petitioners’ motion

for judgment of acquittal on the remaining CWA

counts. However, the court specifically noted the

paucity of evidence supporting CWA jurisdiction:

I would be much more impressed with the gov-

ernment’s case if there were some evidence .

some clue as to what might be factors that could

be considered in determining whether there is a

significant nexus between the wetland and navi-

gable body of water, in fact.

For example, if there were some evidence of ...

the flow of water from the wetlands to the naviga-

ble body of water. And we do not have that here.

Some evidence that there is contamination at the

Section 10 navigable body of water which is adja-

cent to the wetlandl,] . . . [or] some evidence which

tends to show that there will be future contamina-

tion or a danger of contamination. And we dont

have any of that here.

Td. at 116a-117a (emphasis added).

The jury nevertheless returned a verdict of guilty

on ali counts. The Court sentenced Robert Lucas to a

total of 108 months incarceration, 3 years supervised

release, $1,407,400 restitution, a $15,000 fine, and a

$4,100 special assessment. Robbie Lucas Wrigley, his

daughter, and M.E. Thompson, Jr., each received a

sentence of 87 months incarceration, 3 years super-

vised release, $1,407,000 restitution, a $15,000 fine,

and a $3,300 special assessment. !

5. The Fifth Circuit’s Extension of CWA Jurisdic-

tion Under A Misapplication Of The Rapanos Plural-

ity And Concurrence. On appeal, petitioners argued

that their convictions should be overturned because

they were based on a legally insupportable interpre-

tation of jurisdiction under the CWA. Specifically,

petitioners maintained that, under the various ap-

proaches to jurisdiction in Rapanos, the Government

had failed to establish the requisite connection be-

tween the wetlands on Big Hill Acres and “waters of

the United States.”

Adopting a sweeping interpretation of CWA juris-

diction, the Fifth Circuit rejected petitioners’ argu-

ment. The court instead interpreted Rapanos to ex-

tend CWA jurisdictien to “waters” — including “wet-

lands” — that merely “neighbor tributaries of naviga’

ble waters.” Pet. App. lla & n. 18 (emphasis added).

According to the court, this is proper under the Ha-

panos plurality opinion “because the plurality defini-

tion includes wetlands adjacent to ‘a relatively per-

manent body of water connected to traditional inter-

state navigable waters.” Jd. (citation omitted; em-

phasis in original). Based on evidence that water

flowed from the wetlands at Big Hill Acres through

intermittent drains, eventually reaching tributaries

of navigable waters, the court held that the wetlands

' In addition, Big Hill Acres, Inc. received a sentence of 5 years

probation, a $4,800,000 fine, restitution of $1,407,400, and a

special assessment of $7,600, while Consolidated Investments,

Inc. received 5 years probation, a $500,000 fine, $1,407,400 res-

titution, and a special assessment of $400.

were subject to CWA jurisdiction. Jd. at 1la-12a.

However, the court cited no evidence, as required un-

der the Hapanos plurality, establishing a “continuous

surface connection” between the wetland and a “rela-

tively permanent body of water.” 547 U.S. at 742

(emphasis added).

The court also purported to apply the “significant

nexus” standard of the Rapanos concurrence. Accord-

ing to the court, that standard was satisfied merely

by “evidence that the [Big Hill Acres] wetlands con-

trol flooding in the area and prevent pollution in

downstream navigable waters.” Pet. App. 12a. The

court, however, cited no evidence of the magnitude of

any effect on downstream waters, much less evidence

that such effects were “significant.” Jbid; Rapanos,

547 U.S. at 780. The court thus rejected petitioners’

jurisdictional challenge.

Petitioners also challenged their convictions on the

ground that the faulty septic systems were not “point

sources” under the CWA and therefore not subject to

NPDES permitting requirements. Moreover, Peti-

tioners argued that, even if a septic system were a

“point source,” petitioners were not required to obtain

a permit because they neither owned nor operated

the faulty septic systems. The Fifth Circuit, however,

concluded that septic systems are a “point source”

simply because they are “containers,” and the defini-

tion of “point source” includes “any .. . container...

from which pollutants are or may be discharged.”

Pet. App. 24a. The court did not, however, address

the contrary position and public statements of the

EPA, which has consistently maintained that a resi-

dential septic system is not a point source.

Finally, the Court held that, even though the peti-

tioners were not “operators” of the septic systems,

they were criminally hable because, simply by design-

ing and certifying the systems, they “caused” the sep-

tic systems’ owners to discharge pollutants in viola-

tion of the CWA. Jd. at 3la.

REASONS FOR GRANTING THE PETITION

Since this Court’s three-way split in Rapanos v.

United States, 547 U.S. 715 (2006), the federal courts

of appeals have expressly divided over which of the

opinions controls and, thus, what legal standard gov-

erns jurisdiction under the Clean Water Act. Indeed,

they have divided on the more fundamental issue of

how, and even whether, to apply the interpretive

principles in Marks v. United States, 430 U.S. 188

(1977). The confusion has led to inconsistent en-

forcement of the CWA — including (as in this case)

criminal enforcement — and enormous uncertainty

for landowners nationwide.

Perhaps as a result of the confusion, the Fifth Cir-

cuit now appears to have extended jurisdiction under

the CWA as far as it has ever reached before — en-

compassing not only wetlands adjacent to navigable

waters, but wetlands “neighboring” mere tributaries

of traditional navigable waters, even where there is

no demonstrably continuous surface connection with

any relatively permanent body of water, and no sig-

nificant effect on the quality of traditional navigable

waters. The court has also held that the CWA per-

mitting requirements extend to ordinary residential

septic systems and to virtually any individual who

designs, certifies, or installs a faulty septic system.

The combination of these rulings drastically expands

federal control over traditionally state and local land-

use decisions.

This case thus presents the Court with another op-

portunity to resolve a far-reaching issue of statutory

interpretation on which this Court divided in Ra-

panos and on which the lower courts are now more

divided than ever, and to curb further unnecessary

and unauthorized expansion of federal power at the

expense of state and local governments.

I. Review Is Needed ‘To Resolve A Mature And Ac-

knowledged Circuit Conflict Over the Proper

Standard for Determining Jurisdiction Under the

Clean Water Act.

There can be no serious doubt that the first ques-

tion presented is worthy of this Court’s review. As

this Court is well aware, the touchstone of federal ju-

risdiction under the CWA — “waters of the United

States” — is both extraordinarily important and no-

toriously difficult to define. And the courts of appeals

are in acknowledged conflict over which of the opin-

ions in Rapanos controls. The Seventh, Ninth, and

Eleventh Circuits have concluded that Justice Ken-

nedy’s “significant nexus” approach controls. The

First Circuit, by contrast, has allowed jurisdiction

when either the plurality or the concurrence is satis-

fied — effectively aligning itself in important respects

with the Rapanos dissent.

1. In United States v. Gerke Excavating, Inc., 464

F.3d 723 (7th Cir. 2006), the Seventh Circuit applied

Justice Kennedy’s approach. There, the defendant

had discharged pollutants into a G-acre tract of wet-

lands, which drained via a ditch into a small tribu-

tary of a non-navigable river, which then emptied

into the Wisconsin River, a navigable body of water.

See id. at 805.

Given the absence of any majority opinion in Fa-

panos, the court applied Marks v. United States, ask-

ing which Rapanos opinion “concurred in the judg-

ments on the narrowest grounds.” 430 U.S. at 193.

According to the Seventh Circuit, because Justice

Kennedy’s concurrence was less restrictive of the gov-

ernment’s jurisdiction under the CWA, it constituted

the “narrowest ground.” 464 F.3d at 724-25. The

court also noted that whenever Justice Kennedy

would find jurisdiction on the basis of a “significant

nexus,” the four dissenters would find jurisdiction as

well. /d. at 724. The Ninth Circuit reached the same

conclusion in Northern California River Watch v. City

of Healdsburg, holding without analysis that Justice

Kennedy’s concurrence “is the narrowest ground to

which a majority of the Justices would assent if

forced to choose.” 496 F.3d 993, 999 (9th Cir. 2007).

Noting that “[t]he circuits . . . are split on the ques-

tion of which Rapanos opinion provides the holding,”

the Eleventh Circuit joined the Seventh and Ninth

Circuits in concluding that Justice Kennedy’s opinion

was controlling. United States v. Robison, 505 F.3d

1208, 1219 (11th Cir. 2007). According to the Elev-

enth Circuit, Justice Kennedy’s concurrence was nar-

rower because it was less “restrictive of CWA juris-

diction.” Jd. at 1221.

The First Circuit, by contrast, has concluded that

CWA jurisdiction could be established under either

the concurring or the plurality opinions in Aapanos.

United States v. Johnson, 467 F.3d 56, 61 (ist Cir.

2006). In so concluding, the First Circuit criticized

the Seventh Circuit for “equatling] the ‘narrowest

opinion’ with the one least restrictive of federal au-

thority to regulate.” Jbid. By allowing a showing of

jurisdiction under either test, however, the First Cir-

cuit essentially aligned itself with the dissent in Ra-

panos, which would also find jurisdiction under either

test. Hapanos, 547 US. at 810.

Although the First Circuit acknowledged that it

thus deviated from the Court’s guidance in Marks, it

asserted that “the Supreme Court itself has moved

away from the Marks formula.” 467 F.3d at 65 (cit-

ing Nichols v. United States, 511 U.S. 738, 745-46

(2003)). The Eleventh Circuit’s opinion in Robison

however, specifically criticized the First Circuit for

departing from Marks. 505 F.3d at 1221.2

2. Rapanos has not only divided the circuit courts,

but has also exacerbated the already significant regu:

latory uncertainty over CWA jurisdiction. Even be-

fore Rapanos, the GAO highlighted drastic inconsis-

tencies in how the Corps exercised jurisdiction over

wetlands — including inconsistencies within individ:

ual district offices. U.S. General Accounting Office,

Report to the Chairman, Subcommittee on Energy

Policy, Natural Resources and Regulating Affairs,

Committee on Government Reform, House of Repre-

? District courts, similarly, have had great difficulty in applying

Rapanos. The Northern District of Texas, for example, rejected

Rapanos entirely. United States vy. Chevron Pipe Line Co., 437

F. Supp. 2d 605 (N.D. Tex. 2006). It did not consider itself

bound by the plurality; and it criticized Justice Kennedy's “sig-

nificant nexus” test as a “vague, subjective centerpiece.” Jbid

The court therefore “lookled] to the prior reasoning in [the Fifth]

(Clircuit,” concluding that “the proper inquiry is whether . . . the

site of the farthest traverse of the spill, is navigable-in-fact or

adjacent to an open body of navigable water.” Jd at 614 (citing

In re Needham, 354 F.3d 340, 346 (5th Cir.2003)).

One district judge in Alabama was so “perplexed” by the post-

Rapanos state of the law that he removed himself from a case

entirely rather than attempting to apply Rapanos. United

States v. Robison, 521 F. Supp. 2d 1247, 1248 (N.D. Ala. 2007).

On remand from the Eleventh Circuit's decision in Robison, the

judge explained that “I am so perplexed by the way the law ap-

plicable to this case has developed that it would be inappropri-

ate for me to try it again.” Jbid He also noted the anomaly of

the Eleventh Circuit's decision, namely, that “a test which

serves to broaden federal jurisdiction (i.e., less restrictive of

CWA jurisdiction’) is the ‘less far reaching’ and ‘narrowest’ of

two purported tests.” /bid.

sentatives, Waters and Wetlands: Corps of Engineers

Needs to Evaluate Its District Office Practices in De-

termining Jurisdiction, GAQ-04-297 (Feb. 2004), at

http://www.gao.gov/new.items/d04297.pdf.

Since Aapanos, the problems have only grown

worse. In its wake, the EPA and the Corps have been

unable to promulgate final regulations clarifying the

extent of jurisdiction over wetlands; instead, they

have issued joint guidance incorporating elements of

both the plurality and the concurrence. Even that

guidance, however, has been roundly criticized as

creating further ambiguity and uncertainty, so much

so that one Congressional Committee recently la-

mented that Aapanos has created a “regulatory

nightmare”:

[T]here is a consensus that, despite the best inten-

tions of [EPA] and the Corps... , the SWANCC

and FRapanos decisions and the implementation

guidance have been a failure. ... [T]he regulatory

nightmare created by the Supreme Court cannot

be fixed by any subsequent administrative actions.

The lack of a clear, definitive standard on the Ra-

panos decisions would mean that any subsequent

agency action would further build on this judicial

“house of cards.”

Opening Statement By Chairman James L. Oberstar,

House Committee on Transportation and Infrastruc-

ture, Hearing on the Clean Water Restoration Act,

(Apr. 16, 2008), at 5, http://transportation house.gov

/Media/File/Full%20Committee/20080416/jlo%200pen

pdf.

The lengthy delays and high costs of the CWA per-

mitting process — detailed by the plurality in Ra-

panos — have also grown. See 547 USS. at 721. Be-

cause agency guidance requires a case-by-case analy-

sis of whether a particular wetland has a “significant

nexus’ to navigable waters, “there has been a signifi-

cant slowdown in the processing of permits by the

Corps — estimated by the Corps to be as much as 60

to 90 additional days per permit application.” Memo-

randum from the Subcommittee on Water Resources

and Environment Majority Staff to Members of the

Committee on Transportation and Infrastructure, at

7 (Apr. 11, 2008), at http://transportation.house.gov

/Media/File/Full%20Committee/20080416/SSM_WR_

04-16-08.pdf. State and local public works agencies

have likewise reported “significant delays and cost

increases” following Rapanos; one State reported that

the time required for Section 404 permitting has in-

creased from 120 days to over eight months. Jbid.

3. In this case, the Fifth Circuit attempted to

sidestep the disagreement within this Court and the

resulting circuit conflict by determining that the evi-

dence was sufficient to support CWA jurisdiction —

and thus petitioners’ convictions — under both the

Rapanos plurality and concurrence. See Pet. App.

lla-138a. However, as noted earlier, that approach

required the Fifth Circuit to conclude that Rapanos

extends federal jurisdiction under the CWA not only

to wetlands that are themselves connected to “navi-

gable-in-fact” waters, but also to wetlands that

“neighbor” tributaries of those waters — even absent

a continuous surface connection between the wetland

and a relatively permanent body of water, and absent

evidence that the wetland has a significant effect on

traditional navigable waters. As we will explain, that

holding is flatly inconsistent with both the Rapanos

plurality and Justice Kennedy’s concurrence, and it

independently warrants this Court’s review.

In short, the conflict about how courts should apply

Rapanos is clear, and this case, although it may not

widen the conflict, provides an excellent vehicle for

resolving it — as well as the underlying confusion

over the vitality and proper application of Marks. Be-

fore reaching the second question presented here, the

Court would logically need to decide which of the Fa-

panos opinions, if any, controls the analysis of CWA

jurisdiction in general and therefore controls the

resolution of the second question presented. If the

Court then determined, as the First Circuit has done

(without applying Marks), that the Rapanos plurality

provides a sufficient basis for determining jurisdic-

tion under the CWA, the Court would next need to

decide (in addressing the second question) whether

the Fifth Circuit correctly interpreted the plurality

opinion. And if the Court agreed with that interpre-

tation, the convictions (at least under Section 404)

would be sustained, whereas if the Court disagreed,

further analysis would be required.

On the other hand, if the Court determined that the

Rapanos concurrence alone controls the jurisdictional

issue, as the Seventh, Ninth and Eleventh Circuits

have held, the Court would need to determine

whether the Fifth Circuit’s “neighboring wetland”

analysis — the subject of the second question — com-

ports with the Hapanos concurring opinion. And if so,

the convictions (at least under Section 404) would be

sustained, whereas if not, further analysis would

likewise be required.

Either way, this case will allow the Court to resolve

the existing circuit split as well as the underlying

confusion over the proper interpretation of a frac-

tured decision of this Court. And it will allow the

Court to do so in the context of an indisputably final

order, and in a case directly implicating not only

money and property, but liberty.

II. Review Is Needed To Overturn The Fifth Circuit's

Misinterpretation Of Both The Rapanos Plurality

And Concurrence, And The Resulting Expansion

Of Federal Jurisdiction Over Wetlands.

The Fifth Circuit’s holding that Rapanos extends

federal jurisdiction under the CWA to wetlands that

merely “neighbor” “tributaries” of navigable waters,

without requiring evidence of a continuous surface

connection with a relatively permanent body of water,

or a significant effect on the water quality of naviga-

ble waters, independently warrants this Court’s re-

view. Indeed, that holding flatly misinterprets both

the Rapanos plurality and the concurrence.

1. The Rapanos concurrence requires not just a hy-

drologic connection between wetlands and a

“neighborling] tributarly]” eventually reaching navi-

gable water (Pet. App. lla n.18); it requires a “sig-

nificant nexus” between the wetland and navigable

water — specifically, evidence that “the wetlands, ei-

ther alone or in combination with similarly situated

lands in the region, significantly affect the chemical,

physical, and biological integrity of other covered wa-

ters more readily understood as ‘navigable.” 547

U.S. at 780 (emphasis added). Wetlands that have

merely a “speculative or insubstantial” effect on the

quality of navigable waters are not covered. Jbid.

On this point, the Fifth Circuit’s analysis consisted

of a single sentence: “The Government presented

evidence that the [Big Hill Acres] wetlands control

flooding in the area and prevent pollution in down-

stream navigable waters, evidence supporting the

significant nexus standard of the Rapanos concur-

rence.” Pet. App. 12a. The cited “evidence,” however,

consisted entirely of speculation, as the district court

itself pointed out: “I would be much more impressed

with the government’s case ... if there were some

evidence of .. . the flow of water from the wetlands to

the navigable body of water. And we do not have that

here. Some evidence that there is contamination at

the Section 10 navigable body of waterl[,] . . . [or] some

evidence which tends to show that there will be fu-

ture contamination or a danger of contamination.

And we don’t have any of that here. Pet. App. 117a

(emphasis added). In fact, the district court empha-

sized that there was “no hard evidence of contamina-

tion of a navigable body of water,” and “no hard evi-

dence ... that any of the water from Big Hill Acres

ever really reaches a navigable body of water” at all.

Ibid. The Fifth Circuit’s opinion nowhere disputes

the district court’s characterization of the evidence.

If, as the Fifth Circuit has now held, conclusory

statements that wetlands “control flooding” and “pre-

vent pollution” are sufficient to establish a “signifi-

cant nexus,” then virtually all wetlands are subject to

the CWA — for ai/ wetlands arguably control flooding

and prevent pollution to some extent. Such a result,

however, is contrary to Justice Kennedy’s admonition

that effects on water quality cannot be merely “specu-

lative or insubstantial.” 547 U.S. at 780.3

2. The Fifth Circuit’s decision also misinterprets

the Rapanos plurality, which held that wetlands are

subject to CWA iurisdiction only if they are (1) “adja-

* The problem is highlighted by the answer of an EPA witness to

a question by the trial judge whether, “[i]f one drop of water gets

from Big Hill Acres to the Pascagoula River, then however that

drop gets there would be a tributary?” The witness responded, “I

think that’s a reasonable description of the word tributary.” Tr.

2124. But as Justice Kennedy explained, such an expansive

definition would sweep in any “drains, ditches, and streams re-

mote from any navigable-in-fact water and carrying only minor

water umes towards it.” Rapanos, 547 U.S. at 781.

cent” to (2) a “relatively permanent, standing or flow-

ing body of water.” Wetlands are “adjacent” if they

have a “continuous surface connection” with

neighboring water, “making it difficult to determine

where the ‘water’ ends and the ‘wetland’ begins.” 547

U.S. at 742 (emphasis added). A body of water is

“relatively permanent” if it is a “continuously present,

fixed bodly] of water,” such as a stream, ocean, river,

or lake. Jd. at 733. Jurisdiction does not extend to

wetlands adjacent to “channels through which water

flows intermittently or ephemerally, or channels that

periodically provide drainage for rainfall.” Jbid.

In the decision below, the Fifth Circuit interpreted

this analysis to extend to “wetlands that neighbor

tributaries of navigable waters,” whether or not they

are themselves navigable in fact. Pet. App. lla n. 18.

And the court reached that conclusion “because the

plurality definition includes wetlands adjacent to ‘a

relatively permanent body of water connected to tra-

ditional interstate navigable waters.” Jbid. (citation

omitted; emphasis in original).

But the panel’s interpretation of the Rapanos plu-

rality is incorrect. That opinion did not say that ju-

risdiction under the CWA extends to any body of wa-

ter that is “adjacent” to a body of water that is in turn

“connected” to “traditional interstate navigable wa-

ter.” If such an attenuated connection were sufficient

to establish CWA jurisdiction, virtually all wetlands

would be covered. See Rapanos, 547 U.S. at 722 (mot-

ing that “the entire land area of the United States

lies in some drainage basin, and an endless network

of visible channe's furrows the entire surface, con-

taining water ephemerally wherever the rain falls”).

Instead, the Aapanos plurality opined that wet-

lands are subject to CWA jurisdiction only if they are

“adjacent” to a “relatively permanent” body of water

(such as a stream, ocean, river, or lake), defining “ad-

jacency” as a “continuous surface connection with

that water, making it difficult to determine where the

‘water’ ends and the ‘wetland’ begins.” Jd. at 742.

Thus, contrary to the decision below, “adjacency” to

tributaries “connected” to navigable waters is not

enough. There must also be a “continuous surface

connection” between the wetland and a “relatively

permanent’ body of water.

Here, the Fifth Circuit cited no evidence of a “rela-

tively permanent” body of water bordering the wet-

lands on Big Hill Acres. As noted, the property lies

about eight miles north of the Gulf of Mexico in Mis-

sissippi and about two-and-a-half miles from the

nearest navigable waters. The only connection be-

tween these waters and the wetlands on Big Hill

Acres is a series of intermittent drains. Pet. App.

116a-117a. As Dr. Sanders, the defense expert, testi-

fied, “All of the drains departing Big Hill Acres are

intermittent streams.” Tr. 4156.

Although the Fifth Circuit relied on evidence of

“flowing open water” north of Big Hill Acres, as well

as tributaries on the western portion of the property

with “strong flow” and “high velocity,” Pet. App. 11a,

there was no evidence (and the Fifth Circuit cited

none) that these tributaries were “relatively perma-

nent.” In fact, one of the government’s two witnesses

on jurisdiction (Stokley) testified that his analysis

“didn’t differentiate” between “perennial or intermit-

tent” streams; the other (Wylie) admitted that he

used the term “tributary” to refer to “intermittent

drains” and that key tributaries leading away from

Big Hill Acres were, in fact, “intermittent drains.”

Tr. 2238 (Stokley); id. at 3133-34 (Wylie). Moreover,

Mr. Wylie agreed that, according to U.S. Geological

Survey maps, “there’s not a single stream or drain

way on Big Hill Acres that . . . is anything other than

an intermittent stream.” Jd. at 3110.

The Fifth Circuit also cited “maps of Big Hill Acres

. showling] Fort Bayou Creek, Bayou Costophia

[sic], tributaries to Bayou Catophia [sic], and tribu-

taries to Little Bluff Creek all connected to the devel-

opment property, and all eventually flowing into

[navigable waters].” Pet. App. 12a (emphasis added).

But again, the fact that wetlands are “connected to”

tributaries that “eventually flowl]” into navigable wa-

ters is irrelevant. The Rapanos plurality requires

significantly more — namely a “continuous surface

connection” to “relatively permanent” bodies of water,

not just any “tributary” that might “eventually flow”

into navigable waters.

The court also pointed to testimony that “there is a

continuous band of wetlands and streams and creeks

that lead from the site to the waters,” as well as

“drainage and wetlands patterns that ‘branch up to-

wards the site.” Pet. App. 12a. But here again, there

was no evidence that these “streams and creeks” were

“relatively permanent.” And even if they were, the

Fifth Circuit cited no evidence that the wetlands at

Big Hill Acres have a “continuous surface connection

with that water, making it difficult to determine

where the ‘water’ ends and the ‘wetland’ begins.” Ra-

panos, 547 U.S. at 742. Instead, the Fifth Circuit

found the plurality’s standard satisfied primarily on

* As the district court described it, “the government’s evidence in

this case .. . is in large part — what Ill refer to as a Aydrological

connection between Big Hill Acres wetlands and Section 10 wa-

ters downstream.” Pet. App. 116a. But under the plurality’s

standard, wetlands with a “physically remote hydrologic connec-

tion to ‘waters of the United States’ /ack the necessary connec-

tion to covered waters” required for jurisdiction. Jd at 2226

(emphasis added).

the ground that some drainage from the development,

at some times, “eventually” flowed inio a navigable

water. Pet. App. 12a.

Finally, the Fifth Circuit referred to a photograph

of an EPA witness in a kayak in a drainage swale af-

ter a hard rain and held that “[a] jury could have rea-

sonably concluded that these pictures show areas on

the edge of the [Big Hill Acres] property where ‘it is

difficult to determine where the water ends and the

wetland begins.” Jd. at 1la-12a (quoting Rapanos,

547 U.S. at 742). There was no evidence, however,

that this isolated incident established a “continuous”

surface connection between the drainage swale and

the wetlands. In fact, there was no evidence of the

surface connection between the wetlands and the

drainage swale at all — let alone testimony that the

picture of a kayaker established such a connection.

The Fifth Circuit therefore incorrectly found jurisdic-

tion under the Rapanos plurality, and did so because

it failed to require either a “relatively permanent”

body of water, or a “continuous surface connection”

between the wetlands at issue and such a body.

In short, the Fifth Circuit has now effectively held

that federal jurisdiction under the CWA extends to

all “wetlands that neighbor tributaries of navigable

waters” regardless of whether there is a continuous

surface connection and regardless of whether the wet-

land has a significant impact on the water quality of

traditional navigable waters. The decision below

thus represents a breathtaking expansion of federal

power in this area — an expansion that is plainly at

odds with both the plurality and the concurrence.

Moreover, that expansion can be corrected in this

case even if the Court is unable to reach a definitive

resolution of the first question presented.

Ill. Review Is Needed To Correct The Fifth Cir-

cuit’s Erroneous And Expansive Interpretation

Of Section 402 Regarding Septic Systems.

This case also provides the Court an opportunity to

correct the Fifth Circuit’s sweeping extension of the

CWA into another area traditionally regulated by the

States — septic systems. The court below interpreted

the term “point source” to include, for the first time,

an ordinary residential septic system — just hke the

septic systems that serve nearly 25% of all US.

households and almost 33% of all new development.

U.S. Environmental Protection Agency, Decentralized

Wastewater Treatment Systems: A Program Strat-

egy “EPA Program Strategy”) at 2 (EPA 832-R-05-

002) (Jan. 2005), at http:/www.epa.gov/owm/

septic/pubs/septic_program_strategy.pdf (citing U.S.

Department of Commerce, U.S. Census Bureau,

American Housing Survey for the United States —

1995, issued September 1997). The court also con-

cluded that criminal liability for the “discharge of any

pollutant” from a leaky septic system extends not

only to the owner or operator of the system, but to

any party who, merely by designing, certifying, orin-

stalling a faulty septic system, “causes” a homeowner

to discharge a pollutant. These rulings are not

merely wrong; they drastically shift the traditional

federal-state balance of authority over local land and

water use.

1. Under the CWA, NPDES permits are required

only for the discharge of a pollutant from a “point

source.” 33 U.S.C. § 1362(12). “Point source” is de-

fined as “any discernible, confined and discrete con-

veyance, including but not limited to any pipe, ditch,

channel, tunnel, conduit, well, discrete fissure, con-

tainer, rolling stock, concentrated animal feeding op-

eration, or vessel or other floating craft, from which

pollutants are or may be discharged.” 33 U.S.C.

§ 1362(14). Although the Fifth Circuit acknowledged

that a septic system “is typically a diffuse, non-point

source,” it held that “installling] septic systems di-

rectly in wetlands . . . malde] a system that is typi-

cally a diffuse, non-point source into a point source.”

Pet. App. 23a-24a n.43 (emphasis added). Other than

the Fifth Circuit’s opinion here, we are aware of no

case that has ever held an ordinary septic system to

be a point source.®

That is likely because the Fifth Circuit’s decision

conflicts with EPA’s own consistent position that an

individual septic system is not a point source. For

example, in a 2005 proceeding that overlapped with

the prosecution at issue here, EPA maintained that

“{ilt is contrary to EPA guidance to treat failing septic

systems as point sources.” Defendants’ Memorandum

in Response to Plaintiffs’ Motion for Summary Judg-

ment, 2005 WL 1585031 (May 19, 2005), in Minne-

sota Center for Environmental Advocacy v. U.S. En-

vironmental Protection Agency, 2005 WL 1490331 (D.

5 The Fifth Circuit relied on three district court opinions, none of

which involved individual septic systems like those at issue

here. 516 F.3d at 333-34. Two of the three cases involved what

the court called a “straight pipe septic system.” Jd Such a sys-

tem, however, is not a septic system at all—it is simply a pipe

that disposes “untreated sewage directly . . . [in]to rivers, lakes,

drain tiles or ditches.” /d.; see United Statesv. Evans, 2006 WL

2221629, at *27 (M.D. Fla. July 14, 2006) (sewage was bypass-

ing septic system and flowing directly into a creek); Minnesota

Center for Environmental Advocacy v. FPA, 2005 WL 1490331,

at *6 (D. Minn. June 23, 2005) (“si aight pipe septic system”).

The third case involved a “[plrivately owned treatment works”

treating sewage from 33 homes; but the definition of a “treat-

ment works treating domestic sewage” expressly excludes “sep-

tic tanks or similar devices.” 40 C.F.R. § 122.2.

Minn. 2005).6 Similarly, EPA’s overview of the

NPDES permitting program’ explains _ that

“filndividual homes that are connected to a municipal

system, use a septic system, or do not have a surface

discharge do not need an NPDES permit.” The fact

that EPA has never regulated individual residential

septic systems, let alone put the public on notice that

such systems are subject to NPDES permitting re-

quirements, confirms that individual septic systems

are not a point source.

The Fifth Circuit’s interpretation also conflicts with

regulations governing the NPDES permitting pro-

gram. Although those regulations require permits for

“owners or operators of any treatment works treating

domestic sewage,” 40 C.F.R. § 122.1(b)(2), they spe-

cifically exclude from the definition of “treatment

works treating domestic sewage” any “septic tanks or

similar devices.” 40 C.F.R. § 122.2. As the Ninth

Circuit has explained, this indicates that the CWA

was not intended to sweep septic systems within the

NPDES permitting program:

The EPA’s decision to exclude septic tanks from

the definition of “treatment works treating domes-

tic sewage” under the permit program implements

its belief that Congress did not intend that all pri-

vate owners of septic tanks would be required to

acquire a [NPDES] permit to operate the septic

tanks.

6 Although EPA made this assertion with respect to the deter-

mination of “total maximum daily loads’ (TMDLs) for particular

pollutants and waters in a State, the definition of “point source”

is the same for TMDLs as it is for the NPDES permitting pro-

gram.

7 Available at http://www.epa.gov/enforcement/monitoring/pro-

grams/cwa/npdes.html (emphasis added).

United States v. Hagberg, 207 F.3d 569, 574 (9th Cir.

2000) (emphasis added). In fact, as EPA’s own com-

mentary to the NPDES permit regulations explains,

given the fact that Congress expressly regulated sep-

tage treatment and processing but not septage gen-

eration, “it would serve no useful purpose to require

[NPDES] permits for the 22 million homeowners with

septic tanks.” National Pollutant Discharge Elimina-

tion System Sewage Sludge Permit Regulations;

State Sludge Management Program Requirements,

54 Fed. Reg. 18,716, 18,718 (1989) (emphasis added).

2. The Fifth Circuit’s novel ruling is all the more

problematic because it comes not in the context of a

regulatory proceeding, but in a criminal prosecution.

This Court has long held that, in the criminal con-

text, the rule of lenity requires that any statutory

ambiguity be “resolved in favor of the defendant.”

United States v. Bass, 404 U.S. 336, 348 (1971), so as

to ensure that citizens have “fair warning” that the

challenged conduct is criminal. United States v.

Lanier, 520 U.S. 259, 266-67 (1997). As this Court

has explained, “due process bars courts from applying

a novel construction of a criminal statute to conduct

that neither the statute nor any prior judicial deci-

sion has fairly disclosed to be within its scope.” Jd. at

266; see also United States y. Plaza Health Laborato-

ries, Inc., 3 F.3d 643, 649 (2d Cir. 1993) (applying the

rule of lenity to the definition of “point source”).

Here, however, neither the CWA nor prior case law

would put any defendant on notice that a septic sys-

tem is a point source. Indeed, as explained above,

EPA has consistently maintained the opposite posi-

tion. Moreover, there are no federal regulations ap-

plicable to individual, residential septic systems; no

federal guidelines explain how to apply the NPDES

permit program to such septic systems; and, to our

knowledge, EPA has never issued an NPDES permit

for an individual, residential septic system. The de-

fendants thus face nearly a decade in federal prison,

largely for conduct that may never have been crimi-

nalized before.

Nor are the drastic implications of the Fifth Cir-

cuit’s opinion confined to the narrow issue of septic

systems. In concluding that the defendants were

criminally liable for failing to obtain an NPDES per-

mit, the court adopted a novel theory of “indirectf]

liablility],” according to which the defendants could

be held criminally liable for the “discharge of [a] pol-

lutant” even though they neither owned, operated,

nor controlled the offending point source. Pet. App.

31a, 34a. According to the court, the defendants were

liable because “they aided and abetted the operation

of the septic systems” and therefore “caused” the re-

sulting discharges. Jd. at 34a.

But nothing in the text of the CWA, its implement-

ing regulations, or precedent support this novel the

ory. The CWA prohibits the “discharge of any pollut-

ant” into navigable waters without a permit, 33

U.S.C. § 1311(a), while “discharge of a pollutant” is

defined as “any addition of any pollutant to navigable

waters from any point source.” 33 U.S.C.

§ 1362(12)(A) (emphasis added). As a textual matter,

then, the defendants could not “add” any pollutant

from a point source because they did not use, own, or

control the alleged point source. And even assuming

the defendants could “add” a pollutant from a point

source they never used, that conduct was unlawful

only because the defendants lacked an NPDES per-

mit. But NPDES permits are available only for the

owner or operator of a point source. See 40 C.F.R.

§ 122.21(a), (b); Newton County Wildlife Ass'n v.

Rogers, 141 F.3d 803, 810 (8th Cir. 1998); Sierra Club

v. El Paso Gold Mines, Inc. 421 F.3d 1133,

1143 (10th Cir. 2005).

Here, it is undisputed that the defendants neither

owned nor operated the alleged point source. The

Fifth Circuit’s novel theory of indirect liability thus

holds them criminally liable for a permit they neither

should nor could have obtained.

3. The Fifth Circuit’s decision also fundamentally

alters the balance of state and federal authority over

local land and water use. The regulation of septic

systems has always been a matter of exclusively state

and local control. Rather than promulgating regula-

tions applicable to septic systems, EPA has issued

“Voluntary National Guidelines for Management of

Onsite and Clustered (Decentralized) Wastewater

Treatment Systems,” guidelines that are designed to

help “rais[e] the quality of state, tribal, and local

management’ of septic systems. (available at

http://www.epa.gov/owm/septic/pubs/septic_ guideline

s.pdf) (emphasis added). Moreover, EPA’s “Program

Strategy” for dealing with septic systems lists as a

“Guiding Principle” that “States, Tribes and some lo-

cal governments are responsible for regulating and

managing [septic] systems.” USEPA, Decentralized

Wastewater Treatment Systems: A Program Strat-

egy (Jan. 2005) (available at http://;www.epa.gov/owm/

septic/pubs/septic program strategy.pdf). The Fifth

Circuit’s septic system ruling, however, injects EPA

squarely into the realm of traditionally state and lo-

cal decision making.

Rapanos counseled against precisely this result.

There, the Court explained that if the phrase “waters

of the United States” were ambiguous as applied to

intermittent flows, “our own canons of construction

would establish that the Corps’ interpretation of the

statute is impermissible” because it would “result in a

significant impingement of the States’ traditional and

primary power over land and water use.” 547 U.S. at

737-738 (quoting SWANCC, 531 U.S. at 174). In re-

jecting the Corps’ interpretation as overly broad, the

Court emphasized that “(rlegulation of land use, as

through the issuance of the development permits [in

CWA cases], is a quintessential state and local

power,” and that a key purpose of the CWA is to pre-

serve “primary state responsibility for ordinary land-

use decisions.” Jd. at 738, 755-56.

The Fifth Circuit’s opinion, however, does just the

opposite: It extends federal authority over individual

septic systems, which have always been the responsi-

bility of state and local authorities. Any ambiguity in

the definition of point source should have been re-

solved in favor of state and local control.

Finally, it is difficult to overstate the immense

practical significance of the Fifth Circuit’s decision.

According to the U.S. Census Bureau, septic systems

serve nearly 25% of U.S. households and almost 33%

of new development. EPA Program Strategy at 2. It

is estimated that 10% to 20% of these systems are al-

ready malfunctioning as a result of inadequate man-

agement, and over half are over 30 years old and at

high risk of failure. /bid. Thus, under the Fifth Cir-

cuit’s ruling, millions of homeowners may be required

to obtain NPDES permits for their septic systems and

face criminal liability if they fail to do so.

Although agency and prosecutorial discretion may

reduce the risk of prosecution in many cases, the

same is not true of citizen suits. Section 505 of the

CWA authorizes “any citizen” to commence a civil ac-

tion against “any person” who has allegedly dis-

charged a pollutant from a point source without an

NPDES permit. 33 U.S.C. § 1365(a), (. The Fifth

Circuit’s ruling thus opens the door to suits for in-

junctive relief, civil penalties, and attorneys’ fees

against tens of millions of ordinary homeowners, not

to mention developers and engineers, for allowing a

discharge without an NPDES permit. See Friends of

Sakonnet v. Dutra, 738 F. Supp. 623 (D. R.I. 1990)

(citizen suit for failed sewage system). In short, one

neighbor can now hale another into federal court

simply for failing to maintain his septic system. That

is not and cannot be the law.

CONCLUSION

The petition should be granted.

Respectfully submitted.

PHILLIP A. WITTMANN GENE C. SCHAERR

DARIA BURGESS DIAZ Counsel of Record

Stone Pigman Walther JOHN FEHRENBACH

Wittman LLC LUKE W. GOODRICH

546 Carondelet Street MICHAEL BHARGAVA

New Orleans, LA 70130 Winston & Strawn LLP

(504) §81-3200 1700 K Street, NW

Washington, DC 20006

STUART ALTSCHULER (202) 282-5000

LINDA T. COBERLY

Winston & Strawn LLP

35 West Wacker Drive

Chicago, Ilinois 60601

(312) 5§8-5E 00

TIM C. HOLLEMAN W. F. HOLDER II

Boyce Holleman & 400 East Railroad St.

Associates Long Beach, MS' 39560

11240 Hwy 49 N., 228-863-4999

Ste. 400-D

Gulfport, MS 39503

(228) 539-6000

Counsel for Petitioners

JUNE 2008

APPENDIX

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-60289

UNITED STATES OF

AMERICA,

Vv.

)

ROBERT J. LUCAS, JR.; )

BIG HILL ACRES INC.; )

CONSOLIDATED )

INVESTMENTS INC-.; )

ROBBIE LUCAS )

WRIGLEY; )

M. E. THOMPSON JR., _)

) Defendants-Appellants

Appeal from the United States District Court

for the Southern District of Mississippi

Before HIGGINBOTHAM, SMITH, and OWEN, Cir-

cuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge.

Defendants sold house lots and designed and cer-

tified septic systems on wetlands but represented the

lots as dry. Septic systems on the lots failed, causing

waste discharges. The Government charged the cor-

porate developer and various individuals with Clean

Water Act (CWA) violations, mail fraud, and conspir-

acy to commit mail fraud and to violate the CWA. A

jury found Defendants guilty on all counts.! Defen-

dants appealed.

Robert J. Lucas owned Big Hill Acres, Inc. (BHA,

Inc.) and Consolidated Investments, Inc. Through

these companies, he acquired Big Hill Acres (BHA), a

large parcel of land in Jackson County, Mississippi

approximately eight miles from the Gulf of Mexico.

He subdivided the property and sold mobile home lots

under long-term installment plans. The property was

not connected to a central municipal waste system,

and County law required Lucas to certify and install

individual septic systems on each lot before they

could establish electric hook-ups or sell the lots. In

Jackson County, septic systems must be approved by

an engineer with the Mississippi Department of

Health (MDH) or by an independent licensed engi-

neer. Lucas initially hired an MDH engineer to ap-

prove septic systems, but MDH withdrew many of its

initial approvals when it found that the lots were on

saturated soils. Lucas then hired a private licensed

engineer, M.E. Thompson, Jr., to approve and certify

the septic systems. Robbie Lucas Wrigley, Lucas's

daughter, advertised the lots, showed them to pro-

spective buyers, and leased them.

| Not every count inc!uded all Defendants. See infra note 3.

The Army Corps of Engineers, the EPA, the

MDH, and the Mississippi Department of Environ-

mental Quality (DEQ) became concerned that Defen-

dants were selling house lots and installing septic

systems on wetlands. These agencies issued several

cease and desist orders against Lucas and Thomp-

son,” and the EPA sent letters to residents and organ-

ized a meeting of the residents to warn them of lot

conditions and to tell them where wetlands were lo-

cated on the property. It also met with BHA's counsel

to attempt to designate the areas where they would

allow development. These efforts were not fully suc-

cessful.

The Government filed a 41-count indictment

against Defendants in June of 2004 and then a su-

perseding indictment, charging filling of wetlands

without a Section 404 permit from the Corps, failing to

obtain Section 402 National Pollutant Discharge

Elimination System (NPDES) Permits for the septic

tanks, mail fraud, and conspiracy to commit mail

fraud and to violate Sections 402 and 404 of the CWA.3

2 A July 15, 1997, letter from MDH to Thompson indicated that

-he must "either fully comply with the statutes when designing

systems, or cease and desist immediately.” A June 3, 1999, cease

and desist order from the Army Corps of Engineers told Lucas

that unpermitted placement of dredged or fill material into wet-

lands violated the CWA and ordered him to cease and desist

constructing homes in a subdivision near Vancleave, Missis-

sippi. An August 4, 1999, administrative order from the EPA

notified Lucas that placement of fill into wetlands without a

permit viclated the CWA and ordered him to cease and desist

from unpermitted filling.

3 Count 1 charged all Defendants with Conspiracy to defraud

buyers using the U.S. mails and conspiracy to violate the CWA;

Counts 2-18 charged Lucas, Wrigley, Thompson, and BIIA, Inc.

with mail fraud; Count 19 charged Lucas, Wrigley, and BHA,

The district court denied pre-trial motions to dismiss

the CWA charges. After the Government concluded

its case, the court denied a joint motion for judgment

of acquittal for all counts, except for counts 30-35

charging violations of the CWA. After a weekend re-

cess and an argument from the Government that

granting the motion would preclude appeal, the court

reversed the acquittal. A jury convicted Defendants

on all counts, and the court denied Defendants’ joint

motion to vacate the verdict, enter a judgment of ac-

quittal on all counts, or to order a new trial. The

court sentenced Lucas, Wrigley, and Thompson to

prison terms; placed BHA, Inc. and Consolidated In-

vestments on probation; and ordered all Defendants

to pay restitution, special assessments, and fines.

The first and overarching question is jurisdiction

-- whether the jury was properly required to find that

the property at issue was subject to the CWA. Lucas,

BHA, Inc., and Consolidated Investments, Inc., as

well as Wrigley in adopting all arguments in Lucas's

brief and Thompson in adopting the CWA jurisdiction

issues raised in Lucas's brief, urge that the jury in-

structions failed to require the jury to find that the

wetlands were "waters of the United States" and in

Inc. with mail fraud; Counts 20-22 charged Lucas with violating

Section 404 of the CWA; Counts 23-26 charged Lucas, Wrigley,

and Thompson with violating Section 404 of the CWA; Counts

27-29 charged Lucas with violating Section 404 of the CWA:

Counts 30-32 charged Lucas, Wrigley, and Thompson with vio-

lating Section 402 of the CWA; Counts 33-39 charged Lucas and

Wrigley with violating Section 402 of the CWA; and Counts 40-

41 charged Lucas with violating Section 402 of the CWA.

refusing its requested charge. The instructions stated

in relevant part,

The term navigable waters means waters

of the United States. Whether a body of

water is navigable-in-fact is determined

by whether it is used or susceptible of be-

ing used in its natural and ordinary con-

dition as a highway for commerce over

which trade and travel are, or may be,

conducted in the customary modes of

trade and travel on water.

The term wetlands means those areas

that are inundated or saturated by sur-

face or groundwater at a frequency and

duration sufficient to support, and that

under normal circumstances do support, a

prevalence of vegetation typically adapted

for life in saturated soil conditions. .. .

Not all wetlands fall under the protection

of the Clean Water Act. However, wet-

lands that are waters of the United

States are protected by the Clean Water

Act. Wetlands are considered waters of

the United States if they are adjacent to a

navigable body of open water. Wetlands

are adjacent to a navigable body of water

if there is a significant nexus between the

wetlands in question and a navigable-in-

fact waterway. Some of the factors which

you may wish to consider in determining

whether there is a significant nexus in-

clude, but are not limited to: . . . flow rate

of surface waters from the wetlands into a

navigable body of water .. . evidence of

any past or present contamination of a

navigable body of water attributable to

the discharge of pollutants on the wet-

lands .. . when, or to what extent, con-

taminants from the wetlands have or will

affect a navigable body of water... .

Defendants argue that the court erred in not in-

cluding their requested language that

The Clean Water Act does not permit the

federal government to impose regulations

over tributaries that are neither them-

selves navigable nor truly adjacent to

navigable waters . . . adjacency implicates

a ‘significant nexus’ between the water in

question and the navigable in fact water-

way. If the government fails to prove be-

yond a reasonable doubt that the wet-

lands at issue in this case are in fact

navigable or truly adjacent to i.e. lying

near, close, contiguous, or adjoining a

navigable waterway, you must find the

defendants not guilty on counts Twenty

through Forty-One.

They allege that the instructions, which did not

include their proposed language, were in error be-

cause they "could have lead the jury to believe that

they could find Defendants guilty under the CWA

even if they found no significant nexus."4

We review alleged error in jury instructions for

an abuse of discretion, reversing "only when ‘the

charge as a whole leaves us with substantial and in-

eradicable doubt whether the jury has been properly

4 Defendant Lucas's Brief at 55.

guided in its deliberations.'"© A district court abuses

its discretion in omitting a requested jury instruction

only if the requested language "(1) is substantively

correct; (2) is not substantially covered in the charge

given to the jury; and (3) concerns an important point

in the trial so that the failure to give it seriously im-

pairs the defendant's ability to present effectively a

particular defense.”®

The court's instructions were not in error, nor

was the court's omission of Defendants’ requested in-

structions. The court's instructions required that the

jury find that the wetlands were waters of the United

States adjacent to navigable waters with a significant

nexus between the wetland and the navigable-in-fact

waterway to establish CWA jurisdiction. The instruc-

tions substantially covered Defendants’ requested in-

structions by requiring adjacency’ as defined by a

significant nexus. The closing arguments also in-

cluded the "significant nexus" language. The Gov-

ernment argued

[T]he government has shown that there is

a significant nexus between the wetlands

on Big Hill Acres and navigable-in-fact

waters. Showed that the surface from the

Big Hill Acres site drains in three direc:

tions. The western portions of the site

drain into Bayou Costapia. Bayou Co:

stapia empties into the Tchoutacabouffa

5 Treadaway v. Societe Anonyme Louis-Dreyfus, 894 F.2d 161,

168 (5th Cir. 2000) (quoting McCullough v. Beech Aircraft Corp.,

587 F.2d 754, 759 (5th Cir. 1979)).

6 United States v. Simkanin, 420 F 3d 397, 410 (5th Cir. 20085).

7 The term “adjacent” is substantially similar to Defendants’ re-

quested term of "truly adjacent."

River, which then empties into the Gulf of

Mexico. The central portions of the Big

Hill Acres development drained through

tributaries into Old Fort Bayou Creek.

And Old Fort Bayou Creek connects to

Old Fort Bayou, which is a protected

coastal preserve emptying into the Gulf of

Mexico. And the eastern portions drain

into the headwaters of Little Bluff Creek,

which then connects to Bluff Creek, which

flows into the Pascagoula River and on to

the Gulf of Mexico. And what we also

demonstrated was that you could walk on

wetlands from any one of these three ar-

eas on Big Hill Acres all the way to the

navigable-in-fact waters.

Defendants also emphasized the need for a signifi-

cant nexus finding in their closing arguments. Lu-

cas's attorney argued, “And if you find that the land

at Big Hill Acres is not adjacent to a navigable-in-fact

body of water, does not have a significant nexus to a

navigable water, you should return a verdict of not

guilty on all the Clean Water Act counts." The court

did not abuse its discretion in giving the CWA in-

structions.®

8 Defendants do not challenge the instructions on the grounds

that they failed to include the Rapanos v. United States stan-

dard for navigable waters. This is understandable. The Rapanos

plurality requires a channel adjacent to a wetland to be adjacent

to "a relatively permanent body of water connected to traditional

interstate navigable waters” to constitute "waters of the United

States," 126 S. Ct. 2208, 2227 (2006), and the Rapanos concur-

rence requires a "significant nexus" between the wetlands and

the navigable waters, meaning that “wetlands, either alone or in

combination with similarly situated lands in the region, signifi-

cantly affect the chemical, physical, and biological integrity of

The second jurisdictional question is the suffi-

ciency of the evidence supporting the jury finding

that the CWA reaches this property. All Defendants

argue that there is insufficient evidence to establish

jurisdiction under the CWA. "Our review of the suffi-

ciency of the evidence supporting a conviction is nar-

row: we will affirm if a rational trier of fact could

have found that the evidence established the essen-

tial elements of the crime beyond a _ reasonable

doubt."9

Under the CWA, the United States has jurisdic-

tion over the “waters of the United States,"! ie.,

navigable waters. Wetlands adjacent to certain navi-

gable waters are waters of the United States,.!! Pa-

other covered waters more readily understood as navigable." 126

S. Ct. at 2248 (Kennedy, J., concurring). The instructions con-

tained elements of both the plurality and concurring opinions by

requiring the jury to find that the wetlands were "adjacent to a

navigable body of open water," mezaing "there is a sugnificant

nexus between the wetlands in question and a navigable-in-fact

waterway.” The judge instructed the jury to consider "flow rates

of surface waters from the wetlands into a navigable water," an

element similar to the connection required by the Rapanos plu-

rality, and to consider "whether there is evidence of when, or to

what extent, contaminants from the wetlands have or will affect

a navigable water," an element similar to the concurrence's sig-

nificant nexus standard.

° United States v. Davis, 226 F.3d 346, 354 (Sth Cir. 2000).

10 33 U.S.C. § 1362(7).

1 See e.g., United States v. Riverside Bayview Homes, Inc., 474

U.S. 121, 133 ("We cannot say that the Corps’ conclusion that

adjacent wetlands are inseparably bound up with the 'waters' of

the United States -- based as it is on the Corps’ and EPA's tech-

nical expertise -- is unreasonable."); Rapanos, 126 S. Ct. at 2217

10a

panos addressed wetlands adjacent to navigable wa-

ters and the tributaries of navigable waters, deter-

mining the types of adjacent tributaries and waters

that count as waters of the United States and the

connection that wetlands must have to these waters

to fall under federal jurisdiction. The four-justice plu-

rality defined waters of the United States, as "rela-

tively permanent, standing or flowing bodies of wa-

ter,"!2 concluding that

establishing that wetlands . . . are cov-

ered by the Act requires two findings:

First, that the adjacent channel contains

a “watelr] of the United States," Ge., a

relatively permanent body of water con-

nected to traditional interstate navigable

waters); and second, that the wetland has

a continuous surface connection with that

water, making it difficult to determine

where the "water" ends and the "wetland"

begins.}*

The plurality did not define “relatively permanent,"

finding that "we have no occasion in this litigation to

decide exactly when the drying-up of a stream bed is

continuous and frequent enough to disqualify the

channel... ."!4

Its adjacency standard finds its roots in Solid

Waste Agency of Northern Cook Cty. v. Army Corps

(recognizing that subsequent cases limiting federal jurisdiction

over certain waters have not overrruled Riverside Bayview).

12 1268. Ct. at 2221.

18 Jd. at 2227

14 Jd at 2221 n.5.

lla

of Engineers ("SWANCC').5 SWANCC did not in-

volve wetlands but held that "nonnavigable, isolated,

intrastate waters" such as "an abandoned sand and

gravel pit" were not waters of the United States.'®

The Rapanos plurality recognized that the Act allows

states under delegated federal authority to regulate

"wetlands adjacent” to "navigable waters .. . other

than those (navigable waters] which are presently

used, or are susceptible to use . . . as a means to

transport interstate or foreign commerce," and that

SWANCC was not to the contrary.!7 In other words,

the Government has jurisdiction over waters that

neighbor tributaries of navigable waters.'8

The evidence presented at trial is sufficient by

the plurality's measure of federal waters. One of the

Government's expert witnesses at trial, Mike Wylie,

described how he began at the westernmost drainage

of the property and moved across, finding "flowing

open water" north of the site and boat points on the

western portion of the property "at the confluence of

two tributaries.” These tributaries had “strong flow"

and "high velocity." Wylie showed photographs of his

staff kayaking in tributaries connected to BHA wet-

lands as well as in several wetlands on the property.

A jury could have reasonably concluded that these

pictures show areas on the edge of the BHA property

16 531 U.S. 159 (2001).

16 Jd at 162.

17 126 S. Ct. at 2220.

18 The definition includes wetlands that neighbor tributaries of

navigable waters because the plurality definition includes wet-

lands adjacent to "a relatively permanent body of water con-

nected to traditional interstate navigable waters." Jd. at 2227

(emphasis added).

12a

where "it is difficult to determine where the ‘water'

ends and the ‘wetland’ begins."!? The Government

maps of Big Hill Acres presented at trial also show

Fort Bayou Creek, Bayou Costophia, tributaries to

Bayou Catophia, and tributaries to Little Bluff Creek

all connected to the development property, and all

eventually flowing into the navigable Tchoutach-

abouffa River, the Pascagoula River, and the Missis-

sippi Sound. Expert Peter Stokely testified that

"there is a continuous band of wetlands and streams

and creeks that lead from the site to the waters," and

showed aerial photographs of "drainage and wetlands

patterns on the site" as well as drainage and wet-

lands patterns that "branch up towards the site” and

that lead "up on to the property itself."

The evidence presented at trial is also sufficient

by the measure of federal waters offered by the con-

curring justices. They concluded that the applicable

standard should be the "significant nexus," evoking

whether "wetlands, either alone or in combination

with similarly situated lands in the region, signifi-

cantly affect the chemical, physical, and biological in-

tegrity of other covered waters more readily under-

stood as navigable."*° The Government presented

evidence that the BHA wetlands control flooding in

the area and prevent pollution in downstream navi-

gable waters, evidence supporting the significant

nexus standard of the Rapanos concurrence.

A four-justice dissent found that United States v.

Riverside Bayview Homes, Inc.”' controls the defini-

19 Jd at 2227.

20 Jd at 2248 (Kennedy, J., concurring).

21474 U.S. 121 (1985).

13a

tion of waters of the United States and the Supreme

Court should defer to "the Corps' judgment that

treating adjacent wetlands as 'waters' would advance

the ‘congressional concerzn for protection of water

quality and aquatic ecosystems."22 The evidence of

flood and pollution control provided by the BHA wet-

lands is sufficient by this measure, as well.

In sum, the evidence presented at trial supports

all three of the Rapanos standards and the jury's

finding that Lucas, Thompson, and Wrigley were

"guilty beyond a reasonable doubt" “of knowingly

causing the discharge of pollutants from a point

source into waters of the United States without a

permit as required by Section 404" of the CWA; that

Lucas, Thompson, and Wrigley were guilty of "know-

ingly causing the discharge of pollutants from a point

source; to wit, a septic system on [various lots], into

waters of the United States without a permit as re-

quired by . . . Section 402” of the CWA; and that all

Defendants were guilty "of conspiracy to commit an

offense against the laws of the United States in viola-

tion of Title 18, United States Code, Section 371...

as alleged in Count 1 of the indictment," alleging, in-

ter alia, that all Defendants "caused the discharge of

sewage into wetlands that are waters of the United

States” and "caused the discharge of pollutants into

wetlands that are waters of the United States."

Finally, Defendants challenge the jurisdictional

elements of the CWA charges on the basis that the

"CWA as applied to the regulation of wetlands is un-

constitutionally vague" and that "jurisdiction [under

22 126S. Ct. at 2244 (Stevens, J., dissenting)

l4a

the Act] continues to be determined on an ad hoc ba-

sis."23 The district court denied their pretrial motion

on vagueness. We review this denial de novo.24 Mul-

tiple agencies had warned Defendants that they were

violating the CWA and state law by installing septic

systems and dredging in federal waters.”> This does

not end our inquiry, as Defendants allege that they

disputed the agencies’ interpretation of the Clean

Water Act.

Even in the absence of disputed agency warnings,

the prevalence of wet property at BHA and an area

network of creeks and their tributaries leading to the

Gulf, some of which connected to wetlands on the

property, should have alerted "men of common intel-

ligence"”6 to the possibility that the wetlands were

waters of the United States under the CWA. As we

found in Avoyelles Sportsmen's League, Ine. v.

Marsh,

23 Defendant Lucas's Brief at 38.

24 United States v. Nevers, 7 F.3d 59, 61 (5th Cir. 2003) (review-

ing de novo the question of unconstitutional vagueness); Haspel

& Davis Milling & Planting Co. v. Bd. of Levee Comm'rs, 493

F.3d 570, 575 (5th Cir. 2007) (reviewing de novo denial of a mo-

tion to dismiss).

26 The District Health Officer for the Jackson County office of

MDH informed Thompson in 1997 that the septic systems that

he approved in wetland soils violated state law. On June 3,

1999, the Corps of Engineers issued a cease and desist letter

ordering Lucas to stop putting filled or dredged material into

wetlands. On August 4, 1999, an EPA Administrative Order or-

dered Lucas to stop fill activity at BHA. On October 27, 1999 the

Mississippi DEQ sent a letter to Lucas indicating that he was

violating the CWA On July 26, 2000 the EPA issued another

cease and desist letter.

26 Ford Motor Co. v. Tex. Dept. of Transp., 264 F.3d 493, 507

(5th Cir. 2001).

15a

the landowners were well aware that at

least a significant portion of their land

was a wetland: if they wished to protect

themselves from liability they could have

applied for a permit and thus obtained a

precise delineation of the extent of the

wetland, as well as the activities permis:

sible on the land.?’

At trial, the Government presented evidence that one

of Lucas's employees told Lucas that the property

might contain wetlands, and that the property might

be regulated. Another employee also testified that

he had warned Lucas that the property was wet.?9

27 715 F.2d 897, 917 (5th Cir. 1983).

28 Direct Examination of John Mizelle. Q: "But when you were

working for Mr. Lucas in doing the work you described, you told

him that there might be a problem here and you knew about it;

right?" A: "Possibly yes, sir.” Q: "And that problem was that you

were working in wetlands and thought you were: is that cor-

rect?” A: "I thought I was, yes, sir." Q: "And you raised that is-

sue with Mr. Lucas?" A: "At one point, yes, sir." * * * Q: "So you

explained to Mr. Lucas that the county [at another job that Mr.

Mizelle worked on, unrelated to BHA] had gotten in trouble and

had been fined for digging, trenching, side casting in wetlands,

is that correct?” A: "Well, yes and no. I mean, [at the county job]

I was working strictly in the water -- in the running creek or

running bayou. It's totally different." Q: "But you explained --

you explained that there were" A: "We [the county] did get fined,

yes, sir." Q: "And you explained that to Mr. Lucas?" A: "Yes, sir."

Q: "And you explained that in the context because you were

working in an area that you thought might be regulated in the

same way: is that correct?” A: "It might be, yes." Q: "And that's

why you raised it with Mr. Lucas -- " A: “Yes, sir.” Q: "--is that

correct? So you had a concern about it, and you raised that con-

cern that maybe you were working in wetlands with Mr. Lucas;

correct?” A: "Right."

29 Direct Examination of Phillip Johnson.

16a

Furthermore, the Government produced evidence

that the language in the deeds conveying property

from a timber company to Big Hill Acres indicated

that the land was subject to "[wletlands, environ-

mental, hazardous or solid waste and flood plain

laws, rules, and regulations affecting said property,"

while another deed from Robert Lucas to Big Hill

Acres was a special warranty deed "with language

saying any property which may constitute coastal

wetlands as defined in the coastal wetland protection

law is conveyed by quitclaim only.” The district court

did not err in denying the vagueness motion.

We now turn from the jurisdictional question of

whether the wetlands were waters of the United

States, to challenges to the sufficiency of the indict-

ment and the instruction to the jury regarding the

CWA's NPDES permitting requirements. We first

address the challenges to the sufficiency of the in-

dictment with respect to the charges for discharging

pollutants from septic systems into waters of the

United States without an NPDES permit.

Counts 30-41 of the superseding indictment

charged some of the Defendants with "knowingly

causling] pollutants, including sewage and domestic

wastewater, to be discharged from a septic system, a

point source, into wetlands that are waters of the

United States without a permit issued under the au-

thority of Section 402 of the Clean Water Act."°°

30 Counts 30-32 charged Lucas, Wrigley, and Thompson: Counts

33-39 charged Lucas and Wrigley, and Counts 40-41 charged

Lucas.

17a

Defendants challenge the sufficiency of the in-

dictment with respect to the Section 402 charges, argu-

ing that "[blecause the regulation [enacting Section

402] unambiguously excludes septic tanks from the

definition of ‘treatment works treating domestic sew-

age,' Defendants were not legally required to obtain

an NPDES permit, and therefore did not violate CWA

Section 402."°1 Defendants moved to dismiss these

counts before trial, arguing that "[t]he CWA regula-

tions require a Section 402 permit for point source dis-

charges and for ‘treatment works treating domestic

sewage.’ An individual on-site septic system is nei-

ther a ‘point source’ nor a ‘treatment works treating

domestic sewage.""82 The Government counters that

"Defendants [on appeal] do not dispute that the re-

lease of sewage from septic tanks constitutes the dis-

charge of a pollutant from a point source."

Even if Defendants abandoned their argument

that septic systems are not a point source, and it ap-

pears they have not, there remains the broader ar-

gument that the indictment is insufficient because

Section 402 NPDES permitting requirements do not

apply to individual septic systems. Because the

NPDES program requires permits for point source

discharges and for certain treatment works, the defi-

nition of a point source is inherent to the applicability

of NPDES permitting to septic systems.

40 C.F.R. § 122 and Sections 123 and /24, "imple-

ment the National Pollutant Discharge Elimination

31 Defendant Lucas's Brief at 33.

82 Memorandum in Support of Motion to Dismiss Clean Water

Act Counts (30-41) For Failing to Charge an Offense, at 3-4.

33 Government's Brief at 51.

18a

System (NPDES) Program under sections 318, 402, and

405 of the Clean Water Act (CWA)." Section 122.1(b)

addresses the "Scope of the NPDES permit require-

ment" and defines the NPDES permitting require-

ment for point sources, stating,

The NPDES program requires permits for

the discharge of "pollutants" from any

"point source" into "waters of the United

States." The terms "pollutant", "point

source" and "waters of the United States"

are defined at § /22.2.

Section 122.2 defines these terms, in relevant part, as

follows:

Point source means any discernible, con-

fined, and discrete conveyance, including

but not limited to, any pipe, ditch, chan-

nel, tunnel, conduit, well, discrete fissure,

container, rolling stock, concentrated

animal feeding operation, landfill

leachate collection system, vessel or other

floating craft from which pollutants are or

may be discharged.

Pollutant means dredged spoil, solid waste, incinera-

tor residue, filter backwash, sewage, garbage, sewage

sludge, munitions, chemical wastes, biological mate-

rials, radioactive materials (except those regulated

under the Atomic Energy Act of 1954, as amended (42

U.S.C. 2011 et seq.)), heat, wrecked or discarded

equipment, rock, sand, cellar dirt and industrial, mu-

nicipal, and agricultural waste discharged into water.

It does not mean:

(a) Sewage from vessels; or

19a

(b) Water, gas, or other material which is

injected into a well to facilitate produc-

tion of oil or gas, or water derived in asso-

ciation with oil and gas production and

disposed of in a well, if the well used ei-

ther to facilitate production or for dis-

posal purposes is approved by authority

of the State in which the well is located,

and if the State determines that the injec-

tion or disposal will not result in the deg-

radation of ground or surface water re-

sources.

After defining the scope of NPDES permitting to ap-

ply to any point source discharging a pollutant into

waters of the United States, Section 122.1(b)(2) de-

scribes other sources (treatment works) that must

meet additional sewage sludge requirements as part

of the NPDES permitting process. Section 122. 1(b)(2)

provides,

The [NPDES] permit program established

under this part a/so applies to owners or

operators of any treatment works treating

domestic sewage, whether or not the

treatment works is otherwise required to

obtain an NPDES permit, unless all re-

quirements implementing section 405(d) of

the CWA applicable to the treatment

works treating domestic sewage are in-

cluded in a permit issued under the ap-

propriate provisions of subtitle C of the

Solid Waste Disposal Act, Part C of the

Safe Drinking Water Act, the Marine Pro-

tection, Research, and Sanctuaries Act of

1972, or the Clean Air Act, or under State

permit programs approved by the Admin-

20a

istrator as adequate to assure compliance

with section 405 of the CWA 34

Treatment works under § /22./ (6)(2) do not in-

clude septic systems. Thus, the NPDES permitting

requirement applies to two types of sources -- point

sources and treatment works. The Government urges

that septic systems that discharge waste directly into

federal waters of the United States are point sources

and thus subject to the first permitting requirement

under § /22./(b)(1). Defendants, on the other hand,

argue that privately-owned septic systems are not

subject to NPDES permitting requirements, impliedly

arguing that they are neither point sources nor

treatment works.

The crux of Defendants' argument is that because

septic systems are not treatment works under §

122.1(6)(2), they cannot be subject to NPDES permit-

ting. But as the Government argues, treatment works

are defined separately from point sources in the regu-

lation: point sources are subject to the permitting re-

quirement, and certain treatment works are addi-

tionally subject to these requirements. In other

words, because § /22./(b)(2) provides that NPDES

permitting “also applies to owners or operators of any

treatment works treating domestic sewage, whether

or not the treatment works is otherwise required to

obtain an NPDES permit,"** the provision "is not ex-

clusionary, but includes additional sources that are

not otherwise covered."*7 Section 122.1(6)(1) provides

34 Emphasis added.

36 See infra note 38 and accompanying text.

386 Emphasis added.

37 Government's Brief at 52.

2la

that point sources are subject to NPDES permitting,

the argument concludes, and that is the definition

that applies here. Section 122.1(b)(2), defining treat-

ment works that are also subject to NPDES permit-

ting, is not the basis for NPDES permitting in this

case. Section 122.1(b)(2)'s exclusion of septic systems

does not diminish § /22./(6)(/)'s applicability to septic

systems. We agree. with this reading.

Section 122.1(b)(1) defines the sources requiring

NPDES permits, namely point sources that discharge

pollutants into U.S. waters. Section 122.1(b)(2) defines

additional sources that must either obtain NPDES

permits or fully meet the sewage disposal require-

ments of § 405 of the CWA. Section /22.1(6)(2) specifi-

cally exempts septic systems from its requirements; it

incorporates the definition of treatment works from §

122.2, and this definition "does not include septic

tanks or similar devices."°* But § /22./(6)(2) does not

address the sources under § /22./(b)(1) to which

NPDES permitting applies. Rather, it implements

NPDES permitting for certain sources of sewage

sludge subject to special sludge disposal require-

ments under the CWA.

The background material to the amendments in-

corporating sewage sludge disposal into the NPDES

permitting program confirms this reading of the stat-

ute. It states that

the amendments direct that any permit

under section 402 of the Act (NPDES per-

mits) issued to a POTW or any other

treatment works treating domestic sew-

age shall include the sludge technical

38 40 C.F.R. § 122.2.

22a

standards, unless such _ requirements

have been included in a permit issued

under subtitle C of the Solid Waste Dis-

posal Act, Part C of the Safe Drinking

Water Act, MPRSA, or the Clean Air Act,

or under State permit programs approved

by the Administrator.®?

By exempting individual septic systems from these

technical sludge disposal and treatment standards,

EPA prevented homeowners and other operators of

individual septic systems from facing these require-

ments. The sewage sludge regulations aim primarily

at "safe use and disposal of sewage sludge,” allowing

permitting that is "compatible with beneficial reuse

projects [for sludge] such as agricultural land appli-

cation."49 Once an entity physically removes sewage

from an individual septic tank, the owner of that tank

no longer has control over the disposal of the waste?!

and should not have to comply with sewage sludge

standards. Section 122.](b)(2) therefore aims at the

disposers, not the initial producers and dischargers,

of sludge.*2

——— en —_ ——_

39 54 F.R. 18716 (EPA 40 C.F_R. § 122, 123, 124, and 501, May 2,

1989).

40 Jd

41 See id. ("To regulate individual septic tanks (whether serving

one or several households) [under the sewage sludge disposal

regulations] obviously would be extremely difficult and ineffi-

cient. It would also be impractical in terms of achieving envi-

ronmental results since the owners and operators of septic tanks

have no effective control over the actual disposition of septage

pumped from their tanks (.c., they cannot control the entities

who pump and dispose of the septage’ (emphasis added)).

42 See id ("Part 122 contains a second part to the definition of

‘treatment works treating domestic sewage.’ It provides that the

23a

In sum, 40 C.F.R. § 122.1 (6)(1) defines the point

sources that are subject to NPDES permitting. 40

C.F.R. § 122.1(6)(2) is a separate portion of the regula-

tion, applying sewage sludge disposal requirements

to entities that might not otherwise be regulated by

NPDES permits under the point source requirement.

Although septic systems are explicitly excluded from

these sludge disposal requirements, Defendants have

not persuaded us that septic systems are not “point

sources" that discharge "pollutants" into U.S. waters

under 40 C.F.R. § 122.1 (6)(1) and that the indictment

fails to state an offense.“ The septic systems on BHA

Regional Administrator may designate a particular facility as a

‘treatment works treating domestic sewage’ for the purpose of

CWA section 405() where necessary to protect public health and

the environment from poor sludge quality, use, handling or dis-

posal practices, or to ensure compliance with 40 C.F.R. Part 503.

This enables the Regional Administrator to carry out the intent

of Congress to ensure that all persons subject to the standards

for sludge use and disposal (e.g., persons who handle sewage

sludge but who do not generate or treat sewage sludge) operate

in compliance with such standards, and that adverse effects on

the environment resulting from poor sludge quality, use, han-

dling or disposal can be minimized. The authority to designate

facilities as ‘treatment works treating domestic sewage’ on a

case-by-case basis is not required for either NPDES (Part 123)

or non-NPDES (Part 501) State programs. Under today's final

rule, States are required to have a program that requires per-

mits for POTWs and other treatment works as defined in §

501.2, but are free to develop any appropriate program to regu-

late other users and disposers of sewage sludge to ensure com-

pliance with the technical standards." (emphasis added)).

43 We recognize that we have not formerly encountered a case

charging an operator of a septic system with failure to obtain an

NPDES permit. This is likely because few cases have presented

us with these unique circumstances, where a developer hired an

engineer to approve and install septic systems directly in wet-

lands that are waters of the United States, thus making a sys-

24a

are "containers," thus suggesting that they fall under

the definition of “point source" incorporated into Sec-

tion 122.1(b)(1), and septic systems hold "solid waste"

and "sewage" that fit within the definition of "pollu-

tion" as defined by Section !22.2. The exemptions to §

122.1(b)(1)'s NPDES permit requirement list sewage

from vessels but do not exempt individual septic sys-

tems from the permitting requirement.*4

We have never addressed whether the Clean Wa:

ter Act can require NPDES permits for septic sys-

tems, but by the language of the Act the septic sys-

tems at issue in this case are point sources that dis-

charged pollutants into waters of the United States

and required NPDES permits. Other case law pro-

vides support for this reading. The Supreme Court's

plurality decision in Rapanos, in the context of § 404

of the CWA, found that,

many courts have held that . . . upstream,

intermittently flowing channels them-

selves constitute "point sources" under

the Act. The definition of "point source"

includes "any pipe, ditch, channel, tunnel,

conduit, well, discrete fissure, container,

rolling stock, concentrated animal feed-

ing operation, or vessel or other floating

craft, from which pollutants are or may

be discharged." 33 U.S.C. § 1362(14). We

have held that the Act "makes plain that

a point source need not be the original

tem that is typically a diffuse, non-point source into a point

source.

44 See 40 C.F_R. § 122.3.

25a

source of the pollutant; zt need only con-

vey the pollutant to ‘navigable waters.""®

The Court, in determining that intervening con-

duits can be point suurces, cited to United States v.

Ortiz® and Dague v. Burlington In Orutz, the

Tenth Circuit reversed an acquittal after a jury trial

on a charge of "discharging pollutants from a point

source (a storm drain) into waters of the United

States ... without [an NPDES] permit."4* Defendant

dumped pollutants into a toilet, and the pollutants

eventually emptied through a storm drain into the

Colorado River.’ Similar to Rapanos, Dague did not

involve a violation of NPDES permit requirements

but addressed the definition of "point source" that is

used in NPDES permitting.®° The Second Circuit held

that where pollutants ran off from a landfill into a

pond and then through a railroad culvert that con-

veyed the pollutants into a surrounding marsh, the

45 126 S. Ct. at 2227 (emphasis added) (quoting S. Fla. Water

Mgmt. Dist. v. Miccosukee Tribe, 541 U.S. 95, 105 (2004)).

46 427 F.2d 1278 (10th Cir. 2005).

47 935 F.2d 1343 (2d Cir. 1990).

48 427 F.3d at 1281.

49 Jd. at 1279-81.

60 33 U.S.C. § 1311, the statute addressed in Dague, uses the

definition of point source from 33 U.S.C. § 1362 (see Dague, 935

F.2d at 1354) and is identical to the definition of point source for

NPDES permitting contained in 40 C.F_R. § 122.2. Section 1362,

like § 122.2, defines point source as “any discernible, confined

and discrete conveyance, including but not limited to any pipe,

ditch, channel, tunnel, conduit, well, discrete fissure, container,

rolling stock, concentrated animal feeding operation, or vessel or

other floating graft, from which pollutants are or may be dis-

charged. This term does not include agricultural stormwater

discharges and return flows from irrigated agriculture.”

26a

railroad culvert was a point source.5! The Second Cir-

cuit followed a definition similar to the Supreme

Court's in distinguishing point sources from nonpoint

sources, identifying point sources as "pollutants .. .

discharged from ‘discernible, confined, and discrete

conveyance(s)' ei her by gravitational or nongravita-

tional means."©2

Several district courts have found that pollutants

discharged from failed septic systems into navigable

waters are point sources for the purposes of the Clean

Water Act. In United States v. Evans, where the "dis-

charge alleged [was] overflow from a septic tank,"™

the Middle District of Florida held that "the affidavits

established that pollutant was being discharged from

a point source into the creek."®4 In that case, some of

the sewage was bypassing the septic system and flow-

ing directly into the creek.*> In Minnesota Center for

Environmental Advocacy v. United States EPA, the

court found that a "straight pipe septic system,"* one

that disposes "untreated sewage directly via a pipe to

rivers, lakes, drain tiles, or ditches," is a point source

under 33 U.S.C. § 1362(14).57 In Friends of Sakonnet

61 935 F.2d at 1358.

62 Sierra Club v. Abston Constr. Co., 620 F.2d 41, 45 (1980)

(quoting 33 U.S.C. § 1362(14)).

53 No. 3:05-cr-159(S3)-J-32MMH, 2006 U.S. Dist. LEXIS 94369

at *90, n.32 (M.D. Fla. July 14, 2006).

54 Jd at 132.

65 Jd at 108.

8% No. 03-5450, 2005 U.S. Dist. LEXIS 12652 at *17 (D. Minn.

June 23, 2008).

57 Jd. at 17-18.

27a

v. Dutra®’ the court held, "The owners of [a] [v]illage

[development] septic system are required to obtain an

NPDES (national pollutant discharge elimination

system) permit under 33 U.S.C. § 1342 as they are dis-

charging pollutants into navigable waters."59 The 33

homes had sewage lines connecting to a "large com-

munal septic tank,"® and the sewage then "deposited

in a leach field"®! and was chlorinated, then sent

through a pipe into the Sakkonet River. When the

septic system failed, raw sewage flowed into the

river. The court held that the system was a "privately

owned treatment works" and that "[t]here is no ques-

tion .. . that the owners of the failed septic system

are liable under 33 U.S.C. § /3// [including ‘effluent

limitations for point sources, other than publicly

owned treatment works')."°2

The septic systems on BHA are not a commun-

ally-used septic system or a straight-pipe system and

are not privately owned treatment works. However,

the evidence produced at trial was sufficient to sup-

port a finding that they were a point source and couid

be subject to NPDES permitting requirements under

the CWA. The indictment was sufficient in charging a

violation of the CWA for failure to obtain NPDES

permits for the septic systems.

8 738 F. Supp. 623 (D. R.I. 1990)

689 Jd. at 630 n.13.

6 Id. at 627.

61 Id

62 Id

28a

The jury instructions on point source pollution

from BHA under Section 402 of the CWA were also suffi-

cient. All Defendants object to the instructions as

"misleading because the language in the instruction

stated multiple times ‘from a point source, to wit, a

septic system,"® arguing that this language could

have suggested that a septic system is a point source

and established an essential element of the crime.

The "to-wit" language arises frequently within the

jury instructions because that language was part of

the counts in the indictment, which the court read to

the jury. The court's instructions after reading the

counts did not include the phrase "to wit, a septic sys-

tem" but instead required the jury to find,

First, that the defendants knew that they

were discharging or causing to be dis-

charged pollutants; Second, from a point

source, Third, that the defendants knew

the physical characteristics of the prop-

erty into which the pollutant was dis-

charged that identify it as a wetland;

Fourth, that the defendants knew of the

facts establishing the required link be-

tween the wetland and waters of the

United States; And fifth, that the defen-

dants knew that they did not have a per-

mit as required by the National Pollutant

Discharge Elimination System Program,

Section 402 of the Clean Water Act.*4

These instructions did not establish that a septic sys-

tem was a point source; they required the jury to find

63 Defendant Lucas's Brief at 55.

64 Emphasis added.

29a

beyond a reasonable doubt that element of the crime.

As the court found in overruling Thompson's attor-

ney's objections to the instruction, "the essential ele-

ment[] -- Element No. 2 requires the jury to find be-

yond a reasonable doubt that there is a point source

without telling them what it is. It's up to them to de-

cide based on the-evidence that they've heard

whether these septic tanks even qualify as a point

source.”

Defendants also argue that "the law imposes the

requirement to obtain a Section 402 NPDES permit

solely upon the actual discharger or operator of a fa-

cility" and that the court's instructions misstated the

law by allowing the jury to convict defendants for

"causing" a discharge. The court, in overruling De-

fendants' objections to the instruction, found,

I think the government's theory of the

case is that they -- although they may not

have discharged the pollutant, they cre-

ated the instrumentality through which a

pollutant could have been discharged.

And I'll let the jury -- I'li let the jury

make a determination as to whether or

not that theory is sufficient to satisfy the

causing of a pollutant or a causing of a

discharge of a pollutant.

The court instructed the jury,

For you to find the defendants guilty of

these crimes, you must be convinced that

the government has proved each of the

following beyond a reasonable doubt:

First, that the defendants knew that they

were discharging or causing the discharge

of pollutants; Second, from a point source:

30a

Third that the defendants knew the

physical characteristics of the property

into which a pollutant was discharged

that identify it as a wetland; Fourth, that

the defendants knew of the facts estab-

lishing the required link between the wet-

land and waters of the United States;

And fifth, that the defendants knew that

they did not have a permit as required by

Section 404 of the Clean Water Act.

Although the court instructed the jury that it

. could find defendants guilty for "causing" a discharge,

Lucas's attorney argued in closing,

The EPA wants to hold Mr. Lucas respon-

sible for septic tank problems even

though he had no control over what the

owners of those systems were doing to

them or how they were using them. Mr.

Lucas and Big Hill Acres do not operate

septic systems on mobile homes in Big

Hill Acres. And the evidence showed that

the EPA doesn't require any kind of per-

mit to operate a septic system. But the

government is here telling you that it's a

crime for Mr. Lucas not to have had a

permit or, even worse, do what the De-

partment of Health and Environmental

Protection Agency encouraged him to do

li.e., take action to counter the failing

septic systems].

Defendants' argument against the court's instruc-

tions turns partly on the construction of 40 C.F.R. §

122.21(b), providing, "When a facility or activity is

owned by one person but is operated by another per-

3la

son, it is the operator's duty to obtain a permit" and

on whether an individual who causes a discharge can

be considered an operator. Defendants point to New-

ton County Wildlife Ass'n v. Rogers, where the court

held that the Forest Service, in approving timber

sales, did not need to obtain NPDES or dredge and

fill permits. If any permits were required, the con-

tractors doing the harvesting and building roads

would have the responsibility of obtaining them.

The Government argues that Congress amended

the CWA in 1987 to broaden criminal liability under

the Act and in doing so, provided that its intent was

to "provide penalties for dischargers or individuals

who knowingly or negligently violate or cause the vio-

lation of certain of the Act's requirements." ®’ The

Government further argues that "defendants may .. .

be held indirectly liable for the discharges as aiders

and abettors under /8 U.S.C. § 2. In each of the CWA

counts, defendants were charged as principals pursu-

ant to this provision. A principal is criminally culpa-

ble for causing an intermediary to commit a criminal

act even where the intermediary has no criminal in-

tent and is innocent of the substantive crime." We

are persuaded by the latter argument.

In Adston Construction Co., we addressed the

question of causation in the context of defining a

point source of pollution. The Sierra Club brought a

65 14] F.3d 803 (8th Cir. 1998).

66 Jd at 810.

67 Government's Brief at 79 (quoting H.R. Rep. No. 99-1004 at

136 (1986) (Conf. Rep.); H.R. Rep. No. 99-189, at 29-30 (1985)

(emphasis added)).

68 Government's Brief at 80°81.

32a

citizen suit against a mining company that con-

structed sediment basins to catch the run-off from

spoil piles.®® The basins occasionally overflowed dur-

ing rainy weather, thus discharging pollutants into a

creek.70 The company argued that it was not legally

responsible for the discharge because "natural" dis-

charge in the form of rain caused the discharge from

the spoil piles;”! it argued that the discharge from the

spoil piles was not a point source of pollution. We

held that although the mining company had not cre-

ated the gullies and ditches formed by the rainwater,

which channeled the mining pollutants into the

creek, the company was responsible for a point source

discharge because it collected the "rock and other ma-

terials" that eventually caused creek pollution.’2 Spe-

cifically, we held that

[nJothing in the [Clean Water] Act re-

lieves miners from liability simply. be-

cause the operators did not actually con-

struct those conveyances, so long as they

are reasonably likely to be the means by

which pollutants are ultimately deposited

into a navigable body of water.”4

This case did not apply specifically to NPDES

permits, however. Defendants' activities in construct-

ing the septic systems fall somewhere between the

69 620 F.2d at 43.

10 Td

71 Jd. at 44.

72 Jd. at 45.

73 The opinion referred to the Clean Water Act by its full name,

the Federal Water Pollution Control Act.

74 Id at 45.

33a

standards in Newtown County Wildlife Ass'n and Ab-

ston Construction Co. Under the Newtown County

Wildlife Ass'n standard, Defendants here could have

been considered the "operators," as they were directly

responsible for designing and certifying the septic

systems that collected and discharged the waste, al-

though a contractor handled the actual installation.

The Government also provided evidence that Lucas

voluntarily worked on the septic systems when own-

ers complained that they were failing, filing them

with dirt and extending the drain fields.”> In Abston

Construction Co., the mine created the waste (rocks

and other mining materials) that was collected in a

point source, the sediment basins; at BHA, Defen-

dants did not create the waste collected in the septic

systems.

We have not addressed whether individuals and

corporations "causing" discharge are required to ob-

tain NPDES permits. Several district courts have. In

Evans, the Middle District of Florida upheld the con-

stitutionality of searches challenged by the owner

and operator of a labor camp. The Government had

obtained search warrants to investigate, among other

things, potential violations of the Clean Water Act for

discharging human waste into a creek without an

NPDES permit. Although the waste came from the

workers in the labor camp, the Defendants may have

constructed the "illegal bypass" around the septic sys-

75 Defendants provided evidence that the state and the EPA had

determined that they would not prosecute installers at BHA for

temporary repairs of septic problems that Defendants claimed at

trial were the lot owners’ responsibility. The Government pre-

sented evidence that Lucas did not follow required procedures

for the repairs and attempted to repair at least one septic sys-

tem on an uninhabited Jot that he wished to re-sell.

34a

tem’® that allowed raw human waste to flow through

a PVC pipe into a creek or ditch.”” Evans asked, of

course, whether there was probable cause to believe

that there was CWA jurisdiction. Friends of Sakkonet

addressed a treatment works rather than a point

source but also speaks to the issue of causation.

There, the defendants were the corporate owners and

former landowners of the land holding a large septic

tank serving 33 homes. The district court granted

summary judgment under the federal CWA against

the "corporate owner of the land on which the failed

sewage system is located" and “the sole trustee of the

Trust” that owned the corporation.”®

Defendant Lucas hired M.E. Thompson to design

and certify the septic systems that discharged pollut-

ants into navigable waters. Although Defendants’

personal septic waste was not the waste that entered

federal wetlands, the attempted technical distinction

between the "discharge of any pollutant” and "caus-

ing" this discharge is unavailing here. The lot owners

eventually used the systems, but Defendants were

the cause of their operation and their unlawful dis-

charge from the systems. At minimum, they aided

and abetted the operation of the septic systems and

the resulting discharges. A jury instruction allowing

conviction for "causing" the discharge of pollutants

was not an abuse of discretion.

In addition to challenging the sufficiency of the

indictment and jury instructions pertaining to

76 2006 U.S. Dist. LEXIS 94369 at *108.

77 Jd. at 108-09.

78 738 F. Supp. at 626, 635.

35a

NPDES permitting, all Defendants challenge the

court's denial of their motion for acquittal on consti-

tutional grounds. Counts 30-35 of the superseding in-

dictment charged Lucas, Wrigley, and Thompson

with causing the discharge of pollutants into waters

of the United States without a Section 402 permit. Fol-

lowing the close of the Government's case, Defen-

dants moved for acquittal on all counts. The district

court initially granted acquittal for counts 30-35 but

after a weekend recess reversed its ruling. The court,

in reversing the acquittal, stated,

I could be in error. And if I am in error, I

should be corrected. And the only way to

preserve that would be to take the matter

-- reserve ruling on the Rule 29 motion and

allow the case to go forward to the jury

with proper instructions.

The court, in other words, questioned its initial de-

termination that there was "no evidence” on the

counts. This decision did not subject Defendants to

double jeopardy, and the court did not abuse its dis-

cretion in denying their acquittal motion.

Reversal of a final judgment of acquittal would

place a defendant in double jeopardy. "A judgment of

acquittal, whether based on a jury verdict of not

guilty or on a ruling by the court that the evidence is

insufficient to convict, may not be appealed... . ""

But an initial ruling of acquittal followed by a change

of mind before any further proceedings occur is not a

final judgment. Smith v. Massachusetts confirmed

that "a prosecutor can seek to persuade the court to

7 United States v. Scott, 437 U.S. 82, 91, 98S. Ct. 2187, 57 L.

Ed. 2d 65 (1978).

36a

correct its legal error [i.e., an “ill-considered acquittal

ruling{ }") before it rules, or at least before the pro-

The district court made its initial ruling outside

of the jury's presence at the end of the week and an-

nounced that the Government could appeal the rul-

ing. The court considered the Government's argu-

ments against the ruling during the weekend recess®!

and, before the trial progressed any further, reversed

its initial ruling on the acquittal. The court's final

ruling was a denial of the motion for acquittal on the

CWA counts, and no double jeopardy attached after

the initial ruling.

Defendants also contest counts 30°35 on the

grounds that the Government's evidence for those

counts did not prove CWA jurisdiction, and that the

court should have granted the motion for acquittal on

these counts. "So long as a reasonable trier of fact

could find that the evidence established guilt beyond

a reasonable doubt, the evidence need not exclude

every reasonable hypothesis of innocence or be wholly

inconsistent with every conclusion except that of

guilt."82 Where a reasonable trier of fact could find

guilt beyond a reasonable doubt, "the jury [is] free to

choose among the reasonable constructions of the

evidence: one of which [is] consistent with [Defen-

dant's] guilt,"** and the judge need not grant a motion

8 543 U.S. 462, 474 (2005) (citing Price v. Vincent, 538 U.S. 634,

637-38, 643-43, and n. 1 (2003)).

8! The prosecution argued that despite the court's intent to allow

an appeal of the judgment, the Government would not be able to

appeal a ruling of acquittal on the counts.

82 United States v. Loe, 262 F.3d 427, 434 (Sth Cir. 2001)

83 Jd

37a

for acquittal. We are persuaded that there was suffi-

cient evidence to support conviction on the counts,

including evidence that the wetlands on BHA were

waters of the United States under the Rapanos stan-

dards, as we have discussed.

All Defendants argue that the indictment was in-

sufficient on the mail fraud charges and that the evi-

dence does not support their mail fraud conviction,

alleging that a breach of the warranty of habitability

is necessary to show fraud for lot sales in Mississippi

and that all lot buyers signed contracts making a

breach of the warranty impossible.§4 Defendants also

allege that no one testified that the lots were "unin-

habitable" and that the Government failed to prove

that septic systems backed up and caused problems

because of their placement in wetlands. They con-

clude that a “breach of a warranty of habitability"

cannot support the mail fraud conviction.

The mail fraud charges were nc* limited to alle-

gations of a breach of warranty. Rather, they charged

a broader scheme of fraudulent misrepresentation

that induced buyers to purchase lots and use of the

mails to further this scheme. The indictment charged,

in relevant part,

8 The contract contained a waiver provision stating, “It is un-

derstood and agreed that Buyer . . . has inspected the above de-

scribed property and that the same is, and has been purchased

by Buyer as a result of said inspection and not upon any repre-

sentation made by Seller or its agents .. . that Buyer waives any

and all claims for damages because of any representation made

by any person whomsoever; and that Seller or its agent or

agents shall not and are not responsible for any inducement,

promise, representation, agreement, condition, or stipulation not

specifically set forth herein."

38a

in advertisements to the public and in

statements to individuals, represented to

potential purchasers of Big Hill Acres lots

that the lots were habitable and suitable

for home sites when in fact they were not

.... Submitted . . . a letter certifying that

the below-ground septic system . . . had

been installed in compliance with Missis-

sippi state law when in fact it was not

[charge against M.E. Thompson] ... .

represented to customers that the lots

they were marketing at Big Hill Acres

development had or would have properly

designed and correctly installed septic

systems that made the lots suitable for

purchase as home sites .. . entered into

contracts with purchasers of Big Hill

Acres to buy home sites that were not

suitable for habitation requiring the pur-

chasers to make monthly payments to the

Big Hill Acres office in Lucedale, Missis-

sippi. .. knowingly caused a payment for

the sale of the lot [identified in counts 2

through 18] to be delivered by the United

States Postal Service to BIG HILL

ACRES, INC., .. . each such mailing be-

ing a separate count ....

The mail fraud statute attaches criminal liability to

Whoever, having devised or intending to

devise any scheme or artifice to defraud,

or for obtaining money or property by

means of false or fraudulent pretenses,

representations, or promises .. . for the

purpose of executing such scheme or arti-

fice or attempting so to do, places in any

39a

post office or authorized depository for

mail matter, any matter or thing what-

ever to be sent or delivered by the Postal

Service .. . or takes or receives therefrom,

any such matter or thing... . ®

Specifically, a jury must find three elements to sup-

port a mail fraud conviction: "(1) a scheme to de-

fraud; (2) use of the mails to execute that scheme;

and (3) the specific intent to defraud.""® A misrepre-

sentation must be material to constitute fraud under

the statute,®’ meaning it "has a natural tendency to

influence, or is capable of influencing, the decision of

the decision-making body to which it was ad-

dressed."88

We are not persuaded that the disclaimer provi-

sion of these individual sales contracts insulates De-

fendants from the federal charges® or that the fraud

alleged and shown in this case was limited to a viola-

tion of that narrow warranty.

We have not addressed the question of whether a

working septic system is required for the implied

warranty of habitability that arises from a contract of

the sale of a house and land under Mississippi law.

Mississippi courts have held that the warranty covers

8 18 U.S.C. § 1341 (emphasis added).

8 United States v. Dotson, 407 F.3d 387, 391-92 (5th Cir. 2005)

(quoting United States v. Strong, 371 F.3d 225, 227 (5th Cir.

2004)).

87 See Neder v. United States, 527 U.S. 1, 22. 119 S. Ct. 1827,

144 L. Ed. 2d 35 (1999).

88 United States v. Harms, 442 F.3d 367, 372 (5th Cir. 2006),

cert. denied, 127 S. Ct. 2875 (2007).

89 Defendants do not cite to any case law for this proposition.

40a

mobile homes and septic systems.°%° We have deter-

mined in an Alabama case that a realtor's misrepre-

sentation that a vacant lot's soil was suitable for a

septic tank®! may have constituted intentional and

negligent misrepresentation and a breach of implied

warranty, remanding to the district court to consider

the issue.

The contracts for the lots purportedly waived the

liability of Defendants and their agents for any repre-

sentations made outside of the written contract, in-

cluding “inducements.” A broad contract waiver can-

not exempt Defendants from federal mail fraud con-

viction in this case. "The Supreme Court has repeat-

edly noted that misrepresentation cannot be justified

by incorrectness of the position of the party to whom

the misrepresentation is made."*? Although residents

# See, eg, Moorman v. Tower Management Co., 451 F. Supp.

2d 846, 851 (S.D. Miss. 2006) (quoting Staley v. Bouril, 718 A.2d

283, 284-85 (1998)) (finding that the warranty of habitability

applies to mobile home lots and citing the Sta/ey case, which

"recognized that ‘in leasing improved lots in a mobile home

park,’ tenants ‘bargain for a similar bundle of goods and ser-

vices," including, for example, ‘potable water, adequate septic

service, and proper electrica] connections,’ all of which are ‘es

sential components of a habitable residence”).

91 See Mann vy. Adams Realty Co., Inc., 556 F.2d 288, 291 (5th

Cir. 1977) (The realtor had stated that "[elverything [was] fine”

concerning the septic system).

92 Jd at 297.

93 Dotson, 407 F.3d at 393-94 (citing United States v. Mandu-

jano, 425 U.S. 564 (1976) ("sanctions for false statements or per-

jury allowed even when inquiry was unconstitutional") and

Dennis v. United States, 384 U.S. 855 (1966) ("It is no defense

to a charge based upon [conspiracy to circumvent a law through

deceit] that the statutory scheme sought to be evaded is some-

how defective.")).

4la

inspected the lots and verified this inspection in the

contract.

Defendants made misrepresentations that di-

rectly contradicted inspecting buyers’ observations.

Wrigley misrepresented the dryness of the site, for

example, when buyers noticed wetlands and wetlands

vegetation and questioned her about the wetlands.

The Government presented evidence that Defen-

dants, despite warnings from agencies that they were

installing septic systems in saturated soils, adver-

tised the lots as "high and dry" and, when asked by

owners if there were wetlands on the property, re-

sponded that there were none. "[T]he mail fraud

statute does not require a completed fraud, just that

the defendant has ‘devised or intendled] to devise’ a

scheme to defraud,” but the Government presented

evidence of a completed fraud, indicating that the lots

were not in fact dry, as Defendants had advertised,

and that residents encountered sewage problems on

their wet lots.% At least one witness also testified

that Wrigley or Lucas added language to her contract

after she signed it; the language stated that she had

been notified about potential wetlands on her prop-

erty, while the owner testified that Defendants had

% United States v. Ratchff, 488 F.3d 639, 645 n.7 (5th Cir.

2007).

% Patrick Brossett, Sr. testified that he “had a problem with it

[the septic] flooding up on. the ground all the time. Every time it

rains, it comes up.” Winford Patterson testified that “within the

first month" his septic system “filled up. Commodes wouldn't

flush.” Sewer "[wlater was coming up into the bathtubs and the

sinks and the showers.” He testified that he had to drain waste

from the system out of his yard and "into the property ditch."

Patricia Griswold testified that sewage "was still backing up

inside the trailer even after the septic tank was pumped."

42a

not informed her of wetlands or shown her any wet-

lands maps when she was purchasing the property.

Other witnesses testified that their land was wet and

that their septic systems backed up. A witness who

had asked Wrigley whether there were any wetlands

on the property testified that it "would have made a

huge difference" in her decision to buy the property if

Wrigley had informed her that it contained wetlands.

Although Defendants presented some evidence that

the septic systems failed because lot owners had mis-

used their septic systems, other lot owners testified

that they only disposed of proper waste in their sys-

tems, yet the systems still failed. Based on this evi-

dence, "a reasonable trier of fact could conclude that

the Government proved beyond a reasonable doubt"9”

that Defendants made material misrepresentations

in selling the lots and that the septic systems failed

because they were placed in wetlands.

The Government also presented evidence that De-

fendants used the mail to accomplish fraudulent

sales: they caused lot owners to send payments

through the mail to the BHA, Inc. office and sent re-

ceipts through the mail for these payments. We are

% Pansy Maddox, district environmental supervisor for MDH,

also testified that "[mlost of the systems were failing because

fled drains had been placed in soils that were too wet and do not

drain adequately to absorb the wastewater."

% Harms, 442 F.3d at 374.

% Defendants allege that "proof of mailing was lacking for

Counts 10 and 16." Count 10 involved lot GG-4. Patricia Gris-

wold, the former owner of lot GG-4, testified that she made a

payment in the mail for that lot and verified that a receipt for

that payment (Government's Exhibit 50(i)) came through the

mail. Count 16 involved lot YY-1. The owner "involved in pur-

chasing YY-1 and YY-2" testified that “[wle paid cash and some-

times by check” for the lot payments. "We mailed them." He also

43a

persuaded that the mailings were sufficiently con-

nected to the fraudulent misrepresentations. "One

‘causes’ an article to be delivered by mail if he acts

with the knowledge that use of the mail will follow in

the ordinary course or if use of the mail is reasonably

foreseeable .: . ."99

After purchasing a lot based on fraudulent mis-

representations, prospective lot owners committed

themselves to years of installment payments to be

made through the mail. Although many owners made

payments after the EPA had informed them that

their lots were on wetlands, these payments con-

nected directly back to contracts that they signed

prior to agency warnings.

Defendants challenge the court's instructions on

mail fraud, arguing that the court abused its discre-

tion by failing to instruct on materiality. For jury in-

structions, "the omission of an element is subject to

harmless-error analysis." Although the district

court erred in stating that the Fifth Circuit Pattern

Jury Instructions for mail fraud do not mention ma-

teriality,!°! the district court's instructions defined

false representations as constituting "a half truth, or

effectively concealling] a material fact, provided it is

made with the intent to defraud."!°2 But this does not

verified that Government's Exhibit 79(a) contained "envelopes

that Mr. Lucas had given us to send our money in to them."

9 United States v. Blankenship, 746 F.2d 233, 240 (5th Cir

1984).

100 Neder, 527 U.S. at 10.

10! The pattern jury instructions require, inter alia, "That the

scheme to defraud employed false material representations."

2001 Fifth Circuit Criminal Jury Instructions.

102 Emphasis added.

44a

end our inquiry. The inclusion of the word "or" be-

tween “half truth" and "conceals a material fact"

could have suggested to the jury that a false repre-

sentation could be defined as a half truth that con-

cealed a non-material fact. The court's instruction,

under either definition of false representation -- one

that is a "half truth" or "conceals a material fact" --

correctly required the jury to find, for a mail fraud

conviction, that defendants “knowingly created a

scheme to defraud. That is, obtain money by inducing

individuals to lease, rent or purchase lots or subdi-

vided real property in [BHA] under representations

that were false."'

The court's instructions included a requirement of

materiality. As indicated above, "a false statement is,

material if it has a natural tendency to znfluence, or

[is] capable of influencing, the decision of the deci-

sion-making body to which it was addressed."!°* By

instructing the jury that the misrepresentations must

have induced individuals to lease the property to con-

stitute fraud, the court required that the jury estab-

lish materiality.

vil ‘

Moving from mail fraud to conspiracy, M.E.

Thompson -- the engineer who designed and certified

the septic systems -- and Wrigley and Lucas,’ con-

103 Emphasis added.

10$ Neder, 527 US. at 16 (internal quotations and citations.omit-

ted, emphasis added).

10% Lucas, BHA, Inc., and Consolidated Investments, Inc. briefed

the conspiracy issues. Wrigley and Thompson adopted the ar-

guments from that brief. Thompson additionally argued that the

evidence did not support his conviction for conspiracy.

45a

test the sufficiency of the conspiracy charge in the in-

dictment and the sufficiency of the evidence proving

conspiracy. They also argue that because the conspir-

acy convictions “are contingent upon the underlying

charges” of violation of the CWA and mail fraud,

there is insufficient evidence to support the conspir-

acy charges. Because we have found sufficient evi-

dence to support the underlying charges, we need not

address their final argument.

We review "the sufficiency of an indictment de

novo, taking the indictment's allegations as true."

To prove a conspiracy under § 371, the evidence must

prove and the indictment must allege "(1) an agree-

ment between the defendant and a co-conspirator to

violate a law of the United States; (2) an overt act by

one conspirator in furtherance of the conspiracy; and

(3) the specific intent to further an unlawful objective

at knowingly,” and “[mlere association with those in-

volved in a criminal venture is insufficient to prove

participation in a conspiracy."”!°%§ The Government

may prove an agreement using "circumstantial evi-

dence," and "in a conspiracy case: an agreement may

be inferred from concert of action, voluntary partici-

pation may be inferred from a collocation of circum-

stances, and knowledge may be inferred from sur-

rounding circumstances."109

108 United States v. Ratchff, 488 ¥ 3d 639, 643 (5th Cir. 2007).

107 United States v. Bieganowski, 313 F.3d 264, 276 (5th Cir.

2002).

108 Jd at 277 (quoting United Staics v. Ballard, 663 F.2d 534,

543 (5th Cir. 1981)).

109 Jd (internal quotations omitted).

46a

With respect to the sufficiency of the indictment,

Defendants only challenge the unlawful objective

prong, arguing that the object of the conspiracy -- the

sale of wetlands -- was not illegal. The indictment

sufficiently alleged unlawfu! objectives and placed

Defendants on notice of the offenses charged. The

unlawful objectives charged included, inter alia,

Use of the United States Mail in further-

ance of a scheme to defraud by inducing

individuals to lease, rent, and purchase

residential lots in the Big Hill Acres de-

velopment .. by making material repre-

sentations they [Defendants] knew to be

false that the lots were suitable for habi-

tation when they were not, in violation of

Title /8, United States Code, Section 134] * *

* By installing septic systems in water-

saturated soils and wetlands, knowingly

causing pollutants, including human

waste, to be discharged from point

sources, into waters of the United States,

specifically, wetlands located im Van-

cleave, Mississippi, without a permit...

in violation of Title 33, United States Code,

Section 1319(c)(2)(A).

Defendants also challenge the sufficiency of the

evidence for the conspiracy conviction, arguing that

there was insufficient evidence to show an agreement

between Thompson and any one of the other Defen-

dants, or that any of the Defendants intended to vio-

late the mail fraud statute or the CWA. When prov-

ing conspiracy,

"[aln express agreement is not required; a

tacit, mutual agreement with common

47a

purpose, design, and understanding will

suffice." Because secrecy is the norm,

each element may be established by cir-

cumstantial evidence.!!°

The circumstantial evidence showed that Thomp-

son agreed to the conspiracy, participated in overt

acts in furtherance of the conspiracy, and that he had

knowledge of the unlawful objectives of the conspir-

acy. The evidence also was sufficient to support a

finding that Defendants intended to commit mail

fraud or to violate the CWA. The Government pre-

sented evidence that Thompson attended meetings

about the septic system designs with MDH and a

"representative" of Lucas.!!! The MDH informed

Thompson in letters that many of the septic systems

he had certified were illegal and that he had certified

septic systems on sites where the MDH had rejected

the installation of septic systems. The MDH sent a

letter to Lucas informing him that the MDH had re-

scinded many of its former recommendations of septic

systems, and an MDH employee met with Wrigley to

explain why the MDH could not recommend under-

ground septic systems for the property. After MDH

brought legal action against Thompson for illegally

approving wastewater disposal systems at a non-

110 United States v. Farias, 469 F.3d 398, 398 (5th Cir.) (quoting

United States v. Infante, 404 F.3d 376, 385 (5th Cir. 2005)), cert.

denied, 127 S. Ct. 1502 (2007).

111 Maddox testified that Mr. Thompson requested a meeting

with her "to discuss the regulations" regarding septic systems in

saturated soils and that Tommy Brodnax attended the meeting

and "said he was there on behalf of Mr. Lucas and his develop-

ment in Vancleave." She testified that "a couple weeks later,

Tommy Brodnax and M.E. Thompson requested another meet-

ing” with her.

48a

BHA site, Wrigley told the MDH to stop interfering

with Thompson's certifications.''!? The MDH also sent

letters to Thompson warning him that he was ille-

gally installing systems. The Government presented

evidence that Thompson ignored the MDH's warnings

and certified systems to allow lot sales to move for-

ward.!!8 The Government also presented evidence

that Thompson did not inspect many of the systems

that he certified and infrequently supervised installa-

tion. A reasonable jury could have determined beyond

a reasonable doubt that Thompson, Lucas, and Wrig-

ley conspired to profit from the sale of lots that were

not habitable and to violate the CWA.

Thompson, Lucas, and Wrigley also challenge the

court's jury instructions on conspiracy, alleging that

the court erred in refusing to instruct the jury on

unanimity and that the Government also requested a

unanimity instruction, which the court failed to give.

The district court viewed the conspiracy claim as a

single conspiracy to commit several offenses, instruct-

ing the jury to find

that the defendant and at least one other

person made an agreement to commit at

least one of the offenses charged in the

—

112 Jim Weston, branch director of the division of on site waste-

water at MDH, testified that Wrigley "picked [him] up, and she

[rode] him around Ocean Springs" and told him that "she felt

that Mr. Thompson was doing a very good job for them out

there As far as she knew, that he knew more about it than we

did. And that we should be ashamed of ourselves for having him

arrested."

113 Defendants presented evidence that Thomspon disagreed

with the MDH's standards for interpreting soil charts and iden-

tifying saturated soils, arguing that his alleged non-compliance

was a result of this disagreement.

49a

indictment. That is, the crime of mail

fraud or to knowingly violate Section 404

of the Clean Water Act or to knowingly

violate Section 402 of the Clean Water

Act as charged in the indictment.

Defendants allege that these instructions created a

"genuine risk that the jury [would be confused] or

that a conviction [might] occur as the result of differ-

ent jurors concluding that a defendant committed dif-

ferent acts" and that the court should have instructed

on unanimity for this charge. The district court did

not abuse its discretion in refusing to do so. The in-

structions did not risk confusing the jury, and they

reasonably instructed the jury that it must find that

Defendants agreed''4 to commit “at least one of the

offenses" to convict for conspiracy, suggesting that

the jurors had to concur on the specific offense -- or

114 See United States v. Dillman, 15 F.3d 384, 391-92 (5th Cir.

1994) (citations omitted) ("The appellants’ argument fails be-

cause it is based on a fundamental misunderstanding of the crux

of a conspiracy charge under 18 U.S.C. § 371: The defendant's

voluntary agreement with another or others to commit an of-

fense against or to defraud the United States. It does not matter

that a single conspiracy was comprised of several objects to

which the defendant did not specifically agree to accomplish, if

ose acts were reasonably foreseeable. Once the defendant had

joined the agreement, the acts of the other conspirators became

his acts irrespective of whether he physically participated in

those particular acts or expressly agreed to the various specific

objectives that constituted the respective stages of the overarch-

ing conspiracy. When twelve jurors believe beyond a reasonable

doubt that the defendant under consideration agreed to achieve

an ultimate criminal purpose against the United States, all ju-

rors need not agree on which particular offenses that defendant

intended personally to commit as long as there is but one con-

spiracy that encompasses the particular offenses charged”).

50a

the several offenses -- that Defendants agreed to

commit.

Finally, Defendants argue that the "District

Court erred in failing to instruct the jury that if the

objective of the conspiracy was legal, Defendants

could not be convicted of conspiracy." Although De-

fendants' proffered instruction was an accurate

statement of the law, the court's instructions sub-

stantially covered the alternative language. They re-

quired that, in order to find conspiracy, the jury must

find that Defendants agreed to commit the "crime of

mail fraud or to knowingly violate Section 404 of the

Clean Water Act or to knowingly violate Section 402

of the Clean Water Act as charged in the indictment,"

thus indicating that the jury must find that Defen-

dants agreed to do something illegal.

Vill

All of the Defendants contest several evidentiary

rulings of the court.'! At trial, the Government pre-

sented Phillip Johnson, a lot owner and worker at

BHA, as a witness. The Government provided Defen-

dants with "The Statements of Phillip Johnson" prio»

to trial but substantially redacted the statements by

cutting out large paragraphs and repasting the mate-

rial. The redacted portions included allegations that

Robert Lucas had bribed local officials to further his

business on BHA. Defendants were unaware of the

redacted bribery allegations until Johnson mentioned

them in direct examination. For the first time at oral

argument, the Government claimed that it had not

6 Lucas, BHA, Inc., Consolidated Investments, Inc., and

Thompson adopted Wrigley's evidentiary arguments.

5la

planned to elicit the bribery testimony and that John-

son's statements came as a surprise.

Regardless of whether or not the Government an-

ticipated that Johnson would testify about bribery, its

behavior was wrong. By redacting the statements in a

non-obvious manner and failing to reveal material

that would arise at trial, the Government shortened

Defendants’ time to prepare an adequate defense.

When improper evidence is introduced to the jury

but a defendant's subsequent motion for mistrial is

denied, we review the denial for abuse of discretion!!®

and, if we find error, we apply harmless error re-

view.!!7 Further,

New trial is required only when, after a

review of the entire record, it appears

that there is a significant possibility that

the prejudicial evidence had a substantial

impact on the jury verdict. We give great

weight to the trial court's assessment of

the prejudicial effect of the evidence, and

prejudice may be rendered harmless by a

curative instruction.!18

116 United States v. Valles, 484 F.3d 745, 756 (5th Cir. 2007) (cit-

ing United States v. Dupre, 117 F.3d 810, 823 (5th Cir. 1997)),

cert. denied, 127 S. Ct. 3025 (2007), and petition for cert. filed

(Jul. 6, 2007) (No. 07-8373), and cert. denied 128 S. Ct. 238

(2007).

17 See, eg., Dorsey v. Quarterman, 494 F.3d 527, 531 (5th Cir.

2007) jurors saw non-redacted version of a redacted transcript

that had been introduced at trial; defendant moved for mistrial;

court denied motion; we reviewed for harmless error and found

that any error was harmless), petition for cert. filed (Oct. 27,

2007) (No. 07-7371).

18 Valles, 484 F.3d at 756.

52a

The FBI had interviewed Johnson and had pre-

pared a summary of the interviews. The Government

provided a redacted version of this summary to de-

fendants before trial, as required by Rule /6 for organ-

izational defendants.!!9 The redacted version of the

FBI summary omitted the following language:

While employed at BHA he [Johnson]

knew several other men who worked for

LUCAS [followed by the names of em-

ployees]. He believes that most of these

employees are still around. DANNY

ANDERSON moved to Newberry, South

Carolina. -

JOHNSON heard rumors from other em-

ployees that LUCAS paid off county off-

cials in order to develop land he was not

supposed to, build roads in an inferior

manner, and get approval for septic tanks

in areas where they would clearly not

function correctly. JOHNSON always as-

sumed that these were just rumors and

that LUCAS was doing things correctly.

However, one day he saw something that

troubled him. Around that spring of 1998

he was repairing a piece of equipment on

the job site. LUCAS pulled up in his car,

then two males pulled up in a Ford

Crown Victoria with county tags dis-

played on it. LUCAS handed each of the

men a brown envelope. They stood at the

back of the car and spoke. Then TOMMY

BROADNAX [sic], a county supervisor

19 FED. R. CRIM. P. 16(a)(1(C).

53a

pulled up. BROADNAX [sic] also received

a brown envelope from Lucas... All four

men then got in the county car and drove

off. They were only gone for a few min-

utes. When they returned BROADNAX

[sic] and LUCAS got out and got in

LUCAS’ car and drove towards the BHA

office. The two men got in the county car

and drove away.

BROADNAX Isic] would frequently come

out to the area and nde around with

LUCAS. Other employees told him that

BROADNAX leased a dump truck to

BHA. The dump truck was very seldom

used but, LUCAS paid for it on a monthly

bases [sic] whether or not it was utilized.

Johnson, in response to a Government question

about a meeting that Johnson had with Brodnax, tes-

tified that Lucas "pulled out a couple of envelopes

and gave one to Tommy," and that there was "some

greenback" in the envelope. This testimony was a

surprise to both the court and Defendants. This sur-

prise introduction of the bribery evidence was unfair

but did not rise to a deprivation of Defendants' due

process rights.

After Johnson testified about bribery, the court

changed its prior ruling that Defendants could not

introduce Johnson's criminal background, allowing

them to extensively cross-examine him about his

prior convictions and arrests. The court also gave

curative instructions and reminded the jury about the

testimony on Johnson's prior convictions, stating,

You have been told that the witness Phil-

lip Johnson was previously convicted of

54a

several felony offenses. A conviction is a

factor you may consider in deciding

whether to believe that witness, but it

does not necessarily destroy the witness'

credibility. It has been brought to your at-

tention only because you may wish to

consider it when you decide whether your

believe the witness’ testimony. * * * You

are here to decide whether the govern-

ment has proved beyond a reasonable

doubt that the defendants are guilty of

the crimes charged. The defendants are

not on trial for any other act, conduct or

offense not alleged in the indictment.

Although Defendants argue that despite these meas-

ures, the bribery evidence tainted the entire case and

"moved the direction of the trial from a mail fraud,

wetlands, habitability, Clean Water Act case into a

public bribery case," the evidence from the record

does not suggest that the case was tainted to this de-

gree or that it led the jury to settle upon a verdict

that it would not have otherwise reached. The Gov-

ernment presented evidence of Defendants’ continued

and knowing violations of the law, despite several

agencies' orders to stop. The evidence in the case did

not focus unduly on bribery but rather on the hydrol-

ogy of the area, the problems that residents faced as a

result of septic systems installed in wet areas, and

Defendants' methods for advertising, selling, and re-

ceiving payments for the lots. The Government did

not mention bribery in its closing argument; its only

discussion of Phillip Johnson referred to his warnings

to Lucas that the land was wet, his complaints about

the failed septic system on his lot, and his road con-

struciion work as an employee for Lucas.

55a

Defendants also argue that the Government, in

providing Johnson's redacted statements to Defen-

dants prior to trial, failed to properly disclose Rule

16(a)(1I)(C) evidence of statements by an organiza-

tion's representative; failed to comply with the court's

discovery order in violation of Rule 26; violated the

Jencks Act; and introduced improper 404(6) character

evidence of "bad acts." The Government did not vio-

late the Jencks Act because it provided an unredacted

version of the statements after Johnson testified.

Even assuming that the Government violated the

court's discovery order and Rule /6(a)(1)(C) by failing

to provide a full, unredacted version of Johnson's

statements prior to trial, we are not persuaded that

the introduction of the testimony and the Govern-

ment's failure to disclose the nature of that testimony

in advance rose to the level of reversible error. !2°

The day after Johnson had mentioned the bribery

incident, the court advised Johnson to "make a con-

scious effort to try to limit [his] responses to the ques-

tions so that [he would bel responsive to the question

and [not] give us more .. . more of a colorful com-

ments [sic] and colorful testimony than is really nec-

essary for this jury to resolve the issues." The court

also allowed the Defendants to extensively cross ex-

amine Johnson and gave the jury cautionary instruc-

tions, as discussed above.

120 See United States v. Ramirez, 174 F.3d 584, 587 (Sth Cir. 1999)

("Even when a [Jencks Act] violation is found, the failure to pro-

duce prior statements is subject to a harmless error analysis.");

United States v. Gonzalez, 661 F.2d 488, 494 (Sth Cir. 1981) ("As-

suming that thle] failure to disclose [under /6(a)(1)(C)] was the

_ government's error, it is not cause to reverse unless prejudicial

to the substantial rights of the accused.").

‘Finally, the district court did not abuse its discre-

tion in refusing to strike Johnson's testimony and rul-

ing that Johnson's testimony was evidence of overt

acts and not Rule 404(b) character evidence, finding,

The government's theory of the conspir-

acy from the beginning has included the

allegation that Mr. Brodnax was at a

minimum helpful in obtaining favorable

zoning decisions and resolutions from the

board of supervisors, exerting influence

upon the health department in an overall

effort to assist Mr. Lucas.

We have held that "all the government need do

[to show that Rule 404(b) does not apply] is suggest a

logical hypothesis of the relevance of the evidence for

a purpose other than to demonstrate [the defen-

dant's] propensity to act in a particular manner."!2!

In its opening arguments, the Government stated:

[T]he Jackson County board of supervi-

sors granted Mr. Lucas variance after

variance, freeing him from any platting

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