• Mark Ryan

A Funky New Ninth Circuit WOTUS Decision Plus One Other

I am not a criminal law expert, but the Lucero case below looks to be a potential game changer for some cases. The old five part-part test for CWA cases ((1) discharge (2) by a person (3) of a pollutant (4) from a pt source (5) to WOTUS) seems to have picked up a sixth element, (6) "to water." Do plaintiffs now need to show that "water" was present even if the water body is jurisdictional? If so, will discharges to dry ditches and ephemeral or intermittent streams without a permit now be OK? Or will courts in civil cases read the 502(6) reference "to water" the same as "WOTUS?" It's not clear, but I suspect this will ultimately be limited to criminal mens rea, and not be held to apply to civil CWA cases. But expect defendants to raise it.

The Acquest Transit case is a never-ending saga. I've lost count of how many court opinions that litigation has spawned. Whatever the ruling in the upcoming September trial, it will be appealed. The next generation of lawyers will be working that case.

United States v. Lucero, ___ F.3d ___, 2021 WL 821948 (9th Cir. 2021) (reversing district court criminal conviction for knowingly discharging fill material into wetland, held that the phrase “discharged into water” in the definition of “pollutant” is the mens rea element of a CWA criminal conviction and the reference to “waters of the United States” is the jurisdictional element; held that the government needed to prove that defendant knew he was discharging “a substance ‘into water.’”; jury instructions were faulty because they did not require a finding that defendant “had to know that the pollutant was discharged ‘into water.’”; rejected arguments that the terms, “water of the United State,” “wetlands” and “tributary” are unconstitutionally vague; the changes in the 2020 WOTUS rule apply prospectively, and do not help defendant where violations occurred in 2014; NOTE dissent)

United States v. Acquest Transit LLC, 2021 WL 809984 (W.D.N.Y. 2021) (on motion to dismiss in wetlands enforcement case, held that EPA could rely on WOTUS rule in effect in 2007 when the alleged violations occurred and those rules allowed ditches to be used to create connection to WOTUS; 2020 WOTUS rule is prospective only; the case will be bifurcate into liability and penalty phases)

United States v Lucero
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