Earlier this week the defendants in United States v. Lucas, a post-Rapanos criminal prosecution from the Fifth Circuit, filed a petition for writ of certiorari with the Supreme Court, seeking review of the Fifth Circuit’s decision upholding their multi-year criminal convictions for, among other things, violations of Sections 402 and 404 of the Clean Water Act.
Beginning in 1994, Lucas and his business associates purchased and developed residential plots in Jackson County, Mississippi. The Corps and the EPA asserted jurisdiction over the development, and eventually brought criminal charges for illegal discharges. The district court’s jury instructions on the CWA jurisdictional question contained elements of both the Rapanos plurality and Kennedy concurrence tests. The jury voted for conviction, Lucas et al. appealed, and the Fifth Circuit affirmed. Importantly, however, the Fifth Circuit did not address the crucial post-Rapanos question, viz., which opinion’s test controls, but rather avoided the issue by concluding that sufficient evidence supported jurisdiction under either the plurality or Kennedy test. The Lucas petitioners seek review on this point.
Interestingly, the petitioners also seek review on the question of whether a residential septic tank can constitute a "point source"; apparently EPA has never so asserted prior to this case, and as the petitioners rightly point out, such an interpretation of point source would require some twenty-five million American homeowners, who have septic tanks, to obtain a Section 402 permit.
Whether the Court will grant the cert petition is impossible to say, but the Court has declined review repeatedly in recent cert petitions pertaining to the CWA jurisdictional issue, e.g., United States v. Johnson from the First Circuit, United States v. Gerke Excavating Co. from the Seventh Circuit, and Northern California River Watch v. City of Healdsburg from the Ninth Circuit.
Update: The above link to United States v. Lucas has been corrected.