National Environmental Enforcement Journal
CWA Does Not Require Proof of Jurisdictional Status of Waters in Criminal Case
United States v. D.J. Cooper
No. 05-4956 (4th Cir. Mar. 28, 2007)
The defendant, D.J. Cooper, owns a trailer park in Bedford County, Virginia, and has been operating a sewage lagoon there since 1967. The lagoon treats sewage from twenty-two trailers at the park by a settlement process whereby solids settle to the bottom of the lagoon and the fluid, when it reaches a certain level, enters an overflow structure where it then flows through a pipe into a chlorine contact tank. The chlorinated fluid flows through a discharge pipe and, after a few feet, into a small creek. The creek is a tributary of Sandy Creek which flows into the Roanoke River. The Roanoke River eventually flows into the Albemarle Sound in North Carolina.
Between 1993 and 1998, the Virginia Department of Environmental Quality (DEQ) recorded over 300 violations of Cooper?s discharge permit, including excessive levels of Kjeldahl nitrogen, chlorine, and suspended solids and low levels of oxygen. Enforcement action culminated in a 1998 Consent Order under which Cooper was to pay a $5,000 fine and embark upon a course of action that would upgrade the lagoon, replace it with a self-contained plant or septic field, or close the trailer lots served by the lagoon. Cooper failed to elect a remedial action by the deadline. A new Consent Order was entered and an additional $2,000 fine imposed.
In March 2002, Cooper?s discharge permit expired. In October 2002, the State Water Control Board canceled the Consent Order and DEQ notified Cooper he was no longer operating with a valid discharge permit. Nevertheless, the discharges continued and the DEQ continued to send Notices of Violation. Finally, in October 2004, the federal government indicted Cooper on thirteen felony counts under the Clean Water Act (CWA) of knowingly discharging a pollutant into the waters of the United States without a permit. After the indictment, Cooper finally ceased discharges from the lagoon. In April 2005, a jury found Cooper guilty on nine counts. He was sentenced to twenty-seven months? imprisonment and a fine of $270,000. Among the issues on appeal is whether the government had to prove that Cooper was aware that the stream into which he discharged was a water of the United States.
The court began its discussion by noting that it is well settled that mens rea requirements do not typically extend to the jurisdictional element of a crime. In United States v. Feola, 420 U.S. 671, 677 n.9 (1975), the court commented that ?the existence of the fact that confers federal jurisdiction need not be one in the mid of the actor at the time he perpetrates the act made criminal by the federal statute.? The Feola Court did recognize that, in exceptional circumstances, Congress might have intended a jurisdictional element to have a both jurisdictional and substantive component. Thus, a court must look to the intent of Congress to determine whether the phrase ?waters of the United States? serves more than a jurisdictional function.
Four circuits have considered the scope of ?knowingly? in the CWA. Of these, three have explicitly refused not to extend the mens rea requirement to ?waters of the United States.? See United States v. Sinskey, 119 F.3d 712, 715 (8th Cir. 1997); United States v. Hopkins, 53 F.3d 533, 541 (2d Cir. 1995); United States v. Weitzenhoff, 35 F.3d 1275, 1284 (9th Cir. 1994). The Fifth Circuit in United States v. Ahmad, 101 F.3d 386, 391 (1996), held that ?knowingly? applies to each element of the offense ?[w]ith the exception of purely jurisdictional elements,? but did not state whether ?waters of the United States? was a purely jurisdictional element.
According to the court, the CWA itself ?offers every reason to conclude that the term . . . is nothing more than the jurisdictional peg on which Congress based federal jurisdiction.? Slip op. at 11 (internal quotation omitted). 33 U.S.C. ¿ 1319(c)(2)(A) makes it a felony for any person to ?knowingly violate section 1311 . . . .? Section 1311(a) states that ?the discharge of any pollutant by any person shall be unlawful.? The statute defines ?discharge of a pollutant? as the ?addition of any pollutant to navigable waters? (¿ 1362(12)). ?Navigable waters? is defined as ?waters of the United States? (¿¿ 1362(7), 1362(12)) and ?waters of the United States? is further defined by regulation. See 40 C.F.R. ¿ 122.2. The statute?s string of provisions does not compel the conclusion that Congress intended the term ?knowingly? to extend to ?waters of the United States.?
The stated purposes of the CWA provide further support that Congress did not intend that ?waters of the United States? be anything other than a jurisdictional term. The principal goal of the act is ?to restore and maintain the chemical, physical, and biological integrity of the Nation?s waters.? 33 U.S.C. ¿ 1251(a). This purpose would be undermined if the government had to prove that a defendant was aware of the jurisdictional facts. According to the court, it is unlikely that Congress intended for culpability to turn upon the defendant?s awareness of the jurisdictional nexus of the polluting acts.
The Supreme Court?s analysis in Feola supports the court?s view. In Feola, the Court held that the statute under review, 18 U.S.C. ¿ 111, proscribing assault of a federal officer, was intended to both deter conduct intended to obstruct federal law enforcement activities and to protect federal law enforcement officers to the fullest extent possible. Given the statute?s purpose, the Court said that it ?cannot be construed as embodying an unexpressed requirement that an assailant be aware that his victim is a federal officer. All the statute requires is an intent to assault, not an intent to assault a federal officer.? 420 U.S. at 684.
Just as the statute in Feola was intended to protect federal officers to the maximum extent possible, the CWA is intended to protect the nation?s waterways. Attaching a mens rea to the jurisdictional element would undermine Congress? intent.
The defense had argued that the CWA?s additional goal of protecting ?the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution? indicated that Congress intended that ?waters of the United States? act as both a jurisdictional and substantive element. The court rejected this argument, noting that it would not advance ?Congress? concern for states to impose the additional burden of proving an individual?s knowledge of those jurisdictional facts. In cases like this one, such a requirement would in fact impede state interests.? Slip op. at 13.
The court also commented that this holding would not encourage exceptionable or unfair prosecution. The Supreme Court stated in Feola:
The situation is not one where legitimate conduct becomes unlawful solely because of the identity of the individual or agency affected . . . . The concept of criminal intent does not extend so far as to require that the actor understand no only the nature of his act but also its consequence for the choice of a judicial forum.
420 U.S. at 685.
The court distinguished this case from its holding in United States v. Wilson, 133 F.3d 251 (1997). In Wilson, the defendant was prosecuted under the CWA for knowingly discharging fill material into a wetland without a permit. The defense contended that it did not know the parcels of land were, in fact, wetlands. The U.S. Army Corps of Engineers, the agency charged with issuing permits of fill material into CWA-regulated wetlands, had doubts on the same issue. Furthermore, Maryland law did ?not appear? to outlaw the activity in question. In this very limited case, the court held that the case was not ?governed by Feola? and required the prosecution to show that the defendant was aware of the fact that the wetlands were within CWA purview. In contrast, there was no confusion in this case as to whether the CWA applied; furthermore, Cooper?s conduct was a crime under Virginia law.
What the government had to prove in this case was that Cooper knowingly discharged the sewage into the creek. There was sufficient evidence to show both that the sewage entered the creek and the Cooper was well aware of this fact. The court therefore affirmed the judgment of the district court.
Published by the National Association of Attorneys General with the cooperation and support of the Office of Enforcement and Compliance Assurance of the U.S. Environmental Protection Agency.
Chief Counsel for Environment