Demonstrating what can only be referred to as a foolish optimism, counsel in a criminal CWA case sought to have the meaning of "waters of the U.S." clarified, given the 3-way split in Rapanos. Robert Lucas et al were convicted of knowingly discharging sewage from septic tanks into wetlands near the Gulf of Mexico. The Fifth Circuit upheld the convictions. U.S. v. Lucas, 516 F.3d 316 (5th Cir. 2008). The defendants asserted there was a split amongst the Circuits re applying Rapanos that needed to be resolved. The U.S. Justice Department filed a brief opposing review, arguing that the case did not provide a suitable vehicle for resolving the conflict between the Circuits. DOJ instead put in a plug for its own petition for review in U.S. v. Robison, 505 F.3d 1208 (11th Cir. 2007).