Summary of a Recent
Judicial Development in
Environmental Law

Septic Tanks Qualify as Point Sources Subject to CWA Regulation

Walt McCarter
Eric H. Foy National AgLaw Center Research Associate

Summary of Decision

In United States v. Lucas, 516 F.3d 316 (5th Cir. 2008), the United States Court of Appeals for the Fifth Circuit affirmed the decision of the district court, which had convicted the defendants of Clean Water Act (CWA) violations. The allegations arose after the defendants' placed septic systems on wetlands that subsequently discharged pollutants into waters of the United States. The court held that the CWA was not unconstitutionally vague, septic systems qualified as CWA point sources, and the defendants were subject to liability for causing the discharges at issue.

Background

The defendants sold housing lots located near the Gulf of Mexico in Jackson County, Mississippi. Id. at 322. The lots were not connected to a centralized waste disposal system; therefore, the defendants installed individual septic systems for each lot. Id. County law required that the defendants obtain approval of the septic systems from a Mississippi Department of Health (MDH) engineer or an independently licensed engineer prior to running electricity to the lots. Id. The defendants hired an MDH engineer to approve the septic systems; however, the engineer would not approve the systems because they were located on saturated soils. Id. Thereafter, the defendants hired an independently licensed engineer to approve the systems, and began leasing and selling the lots. Id.

The United States Environmental Protection Agency (EPA) and other state agencies became concerned that the defendants' lots were located on wetlands. Id. On June 3, 1999, the Army Corps of Engineers (ACE) sent a cease and desist order notifying the defendants that they were violating the CWA by placing dredged or fill material into wetlands without a permit. Id. at 323. Two months later, the EPA sent the defendants an administrative order restating the ACE's demands. Id. Finally, in June 2004, the government filed an indictment of the defendants charging them with violations of CWA § 402 and conspiracy to violate CWA § 402 and § 404. Id. Eventually a jury convicted the defendants on each count. Id. The defendants appealed.

Arguments

The defendants argued that the jury instructions were erroneous because the court left out their proposed language, the jurisdictional reach of the CWA did not cover the waters near the defendants' lots, and the CWA was unconstitutionally vague. Id. at 324-25, 27. The defendants also argued that the CWA did not apply to individual septic tanks because they were not point sources. Id. at 329. Finally, the defendants charged that the evidence supporting the conspiracy convictions was insufficient. Id. at 342.

Analysis and Holdings

The court first addressed the defendants' argument that the jury instructions were erroneous because the court left out the defendants' proposed language and, therefore, could have led the jury to believe that it could find the defendants guilty of violating CWA § 404 even if it found no significant nexus between the water in question and a navigable waterway. Id. at 324. After reviewing the district court's jury instructions, the court held that the instructions were not erroneous because they 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," and they "substantially covered [the d]efendants' requested instructions by requiring adjacency as defined by a significant nexus." Id. at 324.

The court then addressed whether the evidence was sufficient to support the jury's finding that the CWA covered the waters at issue. Id. at 325. The United States Supreme Court has defined "waters of the United States" as "relatively permanent, standing or flowing bodies of water." Id. at 325-26 (quoting Rapanos v. United States, 547 U.S. 715, 732 (2006)). Applying Rapanos to the instant case, the court stated, "the Government has jurisdiction over waters that neighbor tributaries of navigable waters." Id. at 326. The court held that the evidence presented at trial was sufficient to classify the waters at issue as waters of the United States according to Rapanos. Id.

Next, the court addressed the defendants' claim that the jurisdictional elements of the CWA were unconstitutionally vague. Id. at 327. In discussing the defendants' vagueness argument, the court noted the number of warnings that both federal and state institutions gave to the defendants as well as warnings from the defendants' own employees. Id. at 327-28. Ultimately, the court held that the district court did not err in denying the defendants' vagueness motion. Id. at 328.

Then the court turned to the defendants' claim that septic tanks were not point sources subject to CWA regulation. Id. at 329. The court noted that it had never before addressed whether septic tanks needed National Pollution Discharge Elimination System (NPDES) permits to be in compliance with the CWA. Id. at 332. After examining relevant case law and reviewing the proffered evidence, the court held that "the evidence produced at trial was sufficient to support a finding that [the septic tanks] were a point source and could be subject to NPDES permitting requirements under the CWA." Id. at 334.

Finally, the court found that the defendants' arguments concerning the conspiracy convictions were without merit, and it did not address those arguments any further. Id. at 342.

The case was decided on February 1, 2008.