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JUDICIAL: Includes CWA

In United States v. Lucero, No. 19-10074, 2021 WL 821948 (9th Cir. Mar. 4, 2021), the Ninth Circuit Court of Appeals reviewed a lower court decision to convict the defendant, James Lucero, of knowingly discharging pollutants into navigable waters in violation of the Clean Water Act (“CWA”). On appeal, the defendant made several arguments as to why his conviction should be overturned. First, Lucero argued that the jury instructions used to convict him wrongly omitted the CWA’s knowledge element; next he argued that the definition of “waters of the United States” is unconstitutionally vague; finally, he argued that the 2020 regulatory definition of “waters of the United States” should apply retroactively to his case. Ultimately, the court rejected the final two claims, but agreed with Lucero that the CWA contains a knowledge element not submitted to the jury.

The case concerns actions Lucero took in 2014. During that time, he facilitated an operation charging construction companies for dumping dirt and debris on dry lands near the San Francisco bay. However, the sites in question turned out to be wetlands protected under the CWA. Lucero was convicted of violating the CWA despite the record containing no evidence about whether Lucero would have known that the lands were wetlands. The Ninth Circuit considered each of Lucero’s arguments in turn. First, they reviewed the text of the CWA and concluded that the Act prohibits people from “knowingly” discharging any pollutant into protected waters without a permit. At Lucero’s trial, the jury instructions did not state that Lucero had to make a “knowing” violation of the CWA in order to be found guilty. Therefore, the court found in favor of Lucero on his first argument, concluding that in order to be convicted of CWA violations, a jury must determine if a defendant made a “knowing” violation.

However, the Ninth Circuit disagreed with Lucero’s final two arguments. Lucero argued that, at the time of his conviction, the regulations defining “waters of the United States” were unconstitutionally vague. The court disagreed, concluding that although the regulatory definition was complex, it nevertheless provided an “ascertainable standard for when ‘wetlands’ and ‘tributaries’ constitute jurisdictional waters.” Finally, Lucero argued that the 2020 regulation defining the term “waters of the United States” should be retroactively applied to his 2014 activities. The court disagreed, concluding that the 2020 rule is a new law that may not be applied retroactively.