Fighting Water Law Prosecutions

31 January 2011 Publication

Texas Lawyer

Don’t mess with Texas: That’s advice Texas lawyers and their clients must take seriously regarding the possibility of criminal environmental prosecution. Here are some things Lone Star State lawyers need to know about keeping their clients out of trouble with the law.

Consider one example of the relative ease with which people can run afoul of environmental laws. Some lawyers probably washed their cars in their driveways before the weather turned cold. What they probably do not realize is that they committed a felony offense, punishable by up to $100,000 and five years in jail. Texas Water Code §7.145 prohibits intentional and knowing water pollution. Did those lawyers intend to pollute Texas waters when that rinse water and soap residue ran down the driveway, into the street and into the storm drain? Did they mean to do anything wrong or break the law? Of course not, but naïveté is no defense (for lawyers or clients).

To be guilty, the wrongdoer simply had to know he was discharging water from the garden hose, which picked up dirt, oil and soap from the car, then ran down the driveway and into the street. By doing so, the wrongdoer has discharged or allowed the discharge of a waste or pollutant in violation of the Texas Water Code. (“Pollutant” is defined so broadly that it includes essentially everything but water.)

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