The Ninth Circuit Weighs In on the Knowledge Requirement in Clean Water Act Criminal Prosecutions

On March 4, 2021, the United States Court of Appeals for the Ninth Circuit issued an opinion reversing the conviction of Defendant James P. Lucero under the Clean Water Act (the “CWA”) and remanding the case to the United States District Court for the Northern District of California for a new trial. Lucero was charged with three (3) counts of knowingly discharging a pollutant near the San Francisco Bay in violation of the CWA.  A jury found Lucero guilty on all three counts and he was sentenced to thirty (30) months in prison. Lucero appealed his conviction to the Ninth Circuit and argued for reversal of the conviction on the following grounds: (1) the jury instructions erroneously omitted the knowledge element contained in the CWA; (2) the definition of “waters of the United States” is unconstitutionally vague; and (3) the narrower April 2020 regulatory definition of “waters of the United States” should be applied retroactively to his case.

As for the first challenge to the conviction, the government argued that the knowledge requirement under the CWA should be interpreted to extend only to the phrase “into water” and not to “waters of the United States.” In a split 2-1 decision, the Ninth Circuit agreed with the government’s position, holding that Congress intended the broadest possible protection against water pollution. The Court held that the phrase “waters of the United States” is simply a jurisdictional element to connect the CWA to Congress’s powers under the Commerce Clause and to confine the constitutional boundaries without extension to every “water” in the United States.  Circuit Judge Bade dissented in this portion of the decision, holding: “the ‘waters of the United States’ element substantively defines the discharge prohibition because it plays an integral role in ‘defin[ing] the evil Congress seeks to prevent’ through the CWA, no other statutory or regulatory provision can plausibly substitute for it in this role, and the majority’s chief reason not to read both “waters of the United States” and “into water” (substantively—the rule against surplusage—), is unconvincing given the use of the definitional provisions across the CWA.”

Although the Court agreed with the government’s interpretation of “knowingly,” the Ninth Circuit held that reversal and remand is necessary because the jury instructions failed to adequately convey the knowledge element to the jury. The Court noted that the government had the burden to prove that Lucero knew he was discharging the pollutants “into water.”  The Court interpreted the CWA to require that for a defendant to knowingly add a pollutant, the defendant “must know that he discharged an enumerated substance from a conveyance, and that the substance was discharged into water.” To require knowledge by a defendant of dumping “into water” is to ensure that a defendant knows he is committing a crime targeted by Congress. The Ninth Circuit further held that the jury instruction erroneously omitted the CWA’s mens rea element and provided that nowhere in the instruction did it indicate that Lucero had to know he discharged the pollutant “into water.” Finally, the Court held that the failure to include the knowledge element in the jury instruction was not harmless error and as such the conviction had to be reversed as a matter of law.

The remaining arguments by Lucero were rejected by the Court.  The Ninth Circuit held that the regulation defining “waters of the United States” is not unconstitutionally vague and noted that although the regulations definitions are complex, they provide an ascertainable standard for when “wetlands” and “tributaries” constitute jurisdictional waters of the United States. The Ninth Circuit also rejected the third argument made by Lucero, holding that the 2020 regulation is to be applied prospectively and is not a judicial interpretation of an existing law that is to be applied retroactively to Lucero’s case.

To read the full opinion, please click here.

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