U.S. v. Eidson

• Decision Date: 31 March 1997
• Docket Number: No. 94-2330,94-2330
• Citation: 108 F.3d 1336
• Parties: , 27 Envtl. L. Rep. 20,853, 10 Fla. L. Weekly Fed. C 795 UNITED STATES of America, Plaintiff-Appellee, v. Charles A. EIDSON, Sandra A. Eidson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1336

108 F.3d 1336

44 ERC 1550, 27 Envtl. L. Rep. 20,853,

10 Fla. L. Weekly Fed. C 795

UNITED STATES of America, Plaintiff-Appellee, v. Charles A. EIDSON, Sandra A. Eidson, Defendants-Appellants.

No. 94-2330.

United States Court of Appeals Eleventh Circuit.

March 31, 1997.

Charles A. Eidson, Tampa, FL, Pro Se.

Eric Gruman, Tampa, FL, for Charles A. Eidson.

Richard C. Minardi, Tampa, FL, for Sandra A. Eidson.

David C. Shilton, Ellen L. Durkee, Appellate Section, Environment Div., Dept. of Justice, W. Bruce Pasfield, United States Dept. of Justice, Washington, DC, for Plaintiff-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before ANDERSON, Circuit Judge, and KRAVITCH and HENDERSON, Senior Circuit Judges.

KRAVITCH, Senior Circuit Judge:

The Clean Water Act ("CWA" or "the Act") prohibits the addition of any pollutant into navigable waters from any point source. 33 U.S.C. §§ 1311(a), 1362(12). It defines "navigable waters" to mean "waters of the United States, including the territorial seas." 33 U.S.C. § 1362(7). The primary issue before this court is whether the drainage ditch into which appellants' company discharged industrial wastewater was a "navigable water" within the meaning of § 1362(7).

I. Background

Cherokee Trading Partners, Inc. ("Cherokee") was a Delaware corporation with its principal place of business at 5118 Ingraham Street in Tampa, Florida. ¹ Charles Eidson was the president of Cherokee and his wife, Sandra Eidson, was its secretary and registered agent. Cherokee operated a used oil recycling and wastewater disposal business. The company collected used oil from businesses for free or for a small fee, brought the oil back to its facility, reduced the water content if necessary, and then resold the oil to other businesses. For a slightly higher fee, Cherokee collected and agreed to dispose properly of industrial wastewater.

On April 25, 1990, a Tampa police officer observed a Cherokee truck parked at the intersection of Ingraham and O'Brien Streets, approximately 100 yards from the company's facility. The officer noticed a "sludge substance" being pumped from the truck into a storm sewer that drained into a storm drainage ditch connecting Ingraham and Commerce Streets. At the time of discharge, a light flow in the storm drainage ditch continued northward into a nearby drainage canal that ran east-west along Commerce Street and that eventually emptied into Tampa Bay.

While the officer was observing the scene, Sandra Eidson approached him. She stated that she was vice-president of Cherokee and that she had told the driver of the truck to pump the substance into the storm sewer. She further informed the officer that the liquid had come from an underground fuel tank in a gasoline station and had been used to rinse the tank to eliminate any residual gasses, ² but that Cherokee had permission to pump into the sewer. When questioned by an environmental inspector later that day, Charles Eidson stated that he had given Sandra Eidson permission to have the driver dump the contents of the truck into the sewer.

The unauthorized discharge of pollutants on April 25, 1990 was hardly an isolated incident at the Cherokee site. Upon the instruction of Charles and Sandra Eidson, Cherokee employees routinely discharged industrial wastewater from trucks onto the ground at the Cherokee site or into the woods and bushes of an adjacent lot. Cherokee employees also went to great lengths to conceal these discharges from environmental regulators. In company documents, they inventoried wastewater that had been discharged onto the ground in a fictional "Tank 8." In anticipation for one announced environmental inspection, Cherokee employees imported truckloads of dirt to hide the site's gross soil contamination. At the same time that it was discharging industrial wastewater in violation of its operating permits and governing environmental laws, Cherokee was routinely assuring its customers that it was treating and disposing of contaminated wastewater in accordance with all applicable environmental laws, regulations, and permits.

Charles and Sandra Eidson were indicted and charged with one count of violating the CWA, 33 U.S.C. §§ 1311(a), 1319(c), by knowingly discharging or causing the discharge of pollutants into navigable waters of the United States. They were also charged with three counts of violating the mail fraud statute, 18 U.S.C. § 1341, by devising and implementing a scheme to defraud in which they used false representations to solicit business customers for Cherokee's wastewater disposal business. ³ Following conviction by a jury on all counts, Charles and Sandra Eidson were sentenced to 70 and 37 months, respectively. This appeal followed.

Concluding that the drainage ditch connecting Ingraham and Commerce Streets is a "navigable water" under the CWA and rejecting appellants' other challenges, we AFFIRM their convictions. Finding an insufficient factual basis for two of the sentence enhancements imposed by the district court, we VACATE their sentences and REMAND for resentencing.

II. Discussion

A. Count I: Clean Water Act

With respect to their CWA convictions, appellants claim that the district court erred in denying their motions for judgment of acquittal made pursuant to Fed.R.Crim.P. 29(a). Most significantly, they claim that the government provided insufficient evidence to prove that the storm drainage ditch connecting Ingraham and Commerce Streets was a "navigable water" within the meaning of § 1362(7) of the CWA. ⁴ We consider appellants' legal claim de novo, reviewing the evidence in the light most favorable to the government. United States v. Mejia, 97 F.3d 1391, 1392 (11th Cir.1996).

Congress enacted the CWA "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251. In order to implement this daunting mandate, Congress "chose to define the waters covered by the Act broadly." United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 133, 106 S. Ct. 455, 462, 88 L.Ed.2d 419 (1985). Courts have agreed that Congress intended the definition of navigable waters under the Act "to reach to the full extent permissible under the Constitution." See United States v. Lambert, 695 F.2d 536, 538 (11th Cir.1983).

The CWA defines "navigable waters" as "waters of the United States, including the territorial seas." 33 U.S.C. § 1362(7). This broad definition "makes it clear that the term 'navigable' as used in the Act is of limited import" and that with the CWA Congress chose to regulate waters that would not be deemed navigable under the classical understanding of that term. Riverside Bayview Homes, 474 U.S. at 133, 106 S.Ct. at 462; see also United States v. Ashland Oil and Transportation Co., 504 F.2d 1317, 1325 (6th Cir.1974) (holding that non-navigable tributary of navigable river is a "navigable water" under § 1362(7)). Therefore, we can easily dispose of appellants' contention that the drainage ditch was not a "navigable water" solely because it was not navigable-in-fact. ⁵

It is by now well established that Congress intended to regulate the discharge of pollutants into all waters that may eventually lead to waters affecting interstate commerce. In adopting the present definition of "navigable waters," Congress recognized that "[w]ater moves in hydrologic cycles and it is essential that discharge of pollutants be controlled at the source. Therefore, reference to the control requirements must be made to the navigable waters, portions thereof, and their tributaries." S.Rep. No. 92-414, at 77 (1972), reprinted in, 1972 U.S.C.C.A.N. 3668, 3742-43. In accordance with this legislative intent, EPA has defined "waters of the United States" to include tributaries to waters that "may be susceptible to use in interstate or foreign commerce," 40 C.F.R. § 230.3(s), ⁶ and courts repeatedly have recognized that tributaries to bodies of water that affect interstate commerce are "waters of the United States" protected by the CWA. See, e.g., United States v. Texas Pipe Line Co., 611 F.2d 345, 347 (10th Cir.1979) (tributary to navigable river); Ashland Oil, 504 F.2d at 1324 (tributary that eventually flowed into river that was navigable-in-fact); State of Georgia v. City of East Ridge, 949 F.Supp. 1571, 1578 (N.D.Ga.1996) (unnamed tributary of interstate creek); United States v. Saint Bernard Parish, 589 F.Supp. 617, 620 (E.D.La.1984) (canal flowing into wetland).

There is no reason to suspect that Congress intended to regulate only the natural tributaries of navigable waters. Pollutants are equally harmful to this country's water quality whether they travel along man-made or natural routes. The fact that bodies of water are "man-made makes no difference.... That the defendants used them to convey the pollutants without a permit is the matter of importance." United States v. Holland, 373 F.Supp. 665, 673 (M.D.Fla.1974); see also Leslie Salt Co. v. United States, 896 F.2d 354, 358 (9th Cir.1990) (noting that protection of the CWA "does not depend on the how the property at issue became a water of the United States"), cert. denied, 498 U.S. 1126, 111 S.Ct. 1089, 112 L.Ed.2d 1194 (1991). Consequently, courts have acknowledged that ditches and canals, as well as streams and creeks, can be "waters of the United States" under § 1362(7). See, e.g., United States v. Velsicol Chemical Corp., 438 F.Supp. 945, 947 (W.D.Tenn.1976) (sewers that lead to Mississippi River); Holland, 373 F.Supp. at 673 (mosquito canals that empty into bayou arm of Tampa Bay).

Likewise, there is no reason to suspect that Congress intended to exclude from "waters of the United States" tributaries that flow only intermittently. Pollutants need not reach interstate bodies of water immediately or continuously in order to inflict serious environmental damage. ⁷ As the Tenth Circuit noted in Texas Pipe Line, "[i]t makes no difference...