United States v. James Lucero

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10074
Plaintiff-Appellee,
D.C. No.
v. 4:16-cr-00107-HSG-1
JAMES PHILIP LUCERO,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Northern District of California
Haywood S. Gilliam, Jr., District Judge, Presiding
Argued and Submitted September 14, 2020
San Francisco, California
Filed March 4, 2021
Before: Bridget S. Bade and Patrick J. Bumatay, Circuit
Judges, and Rosemary Márquez, * District Judge.
Opinion by Judge Bumatay;
Partial Concurrence and Partial Dissent by Judge Bade
*
The Honorable Rosemary Márquez, United States District Judge
for the District of Arizona, sitting by designation.
2 UNITED STATES V. LUCERO
SUMMARY **
Criminal Law
The panel reversed a conviction on three counts of
knowingly discharging a pollutant in violation of the Clean
Water Act, and remanded for a new trial, in a case in which
the defendant orchestrated a scheme charging construction
companies to dump dirt and debris on lands near the San
Francisco Bay—sites that included “wetlands” and a
“tributary” subject to the Act.
The panel held that the Act requires the government to
prove that a defendant knew he was discharging material
“into water,” but need not prove that the defendant knew he
discharged the pollutant in “to waters of the United States.”
The panel explained that the latter phrase is a jurisdictional
element connecting the Clean Water Act to Congress’s
Commerce Clause powers. The panel held that the jury
instructions failed to make clear the requirement that the
defendant knew the pollutant was discharged “into water,”
and could not say that the error was harmless. The panel
therefore reversed the conviction and remanded for a new
trial with jury instructions that make clear the government’s
burden to prove that the defendant knowingly discharged fill
material “into water.”
The panel held that the regulation defining “waters of the
United States” at the time of the defendant’s trial is not
unconstitutionally vague. The panel explained that although
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. LUCERO 3
the definitions are complex, they provide an ascertainable
standard for when “wetlands” and “tributaries” constitute
jurisdictional waters.
The panel held that a newly promulgated 2020 regulation
that substantially narrowed the definition of “waters of the
United States” represents a change in the law that does not
apply retroactively.
Dissenting in part, Judge Bade joined the majority’s
opinion except as to the sections that conclude that the
reference to “waters of the United States” is a purely
jurisdictional element and therefore not subject to the
“knowingly” mens rea requirement.
COUNSEL
Angela M. Hansen (argued) and Robin Packel (argued),
Assistant Federal Public Defenders; Steven G. Kalar,
Federal Public Defender; Office of the Federal Public
Defender, Oakland, California; for Defendant-Appellant.
David Gunter (argued) and John L. Smeltzer, Attorneys; Eric
Grant, Deputy Assistant Attorney General; Environment and
Natural Resources Division, United States Department of
Justice, Washington, D.C.; for Plaintiff-Appellee.
Norman D. James, Fennemore Craig P.C., Phoenix, Arizona;
Thomas J. Ward, National Association of Home Builders,
Washington, D.C.; for Amicus Curiae National Association
of Home Builders.
4 UNITED STATES V. LUCERO
Anthony L. François and Jonathan Wood, Pacific Legal
Foundation, Sacramento, California, for Amici Curiae
Chantell and Michael Sackett, Duarte Nursery Inc., John
Duarte, Roger J. Lapant Jr., Oregon Cattlemen’s
Association, and Washington Cattlemen’s Association.
OPINION
BUMATAY, Circuit Judge:
Most Americans would be surprised to learn that dry
land might be treated as “navigable waters” under the Clean
Water Act. Yet that’s just the oddity we face here. James
Lucero orchestrated a scheme charging construction
companies to dump dirt and debris on lands near the San
Francisco Bay. As it turns out, these sites actually included
“wetlands” and a “tributary” subject to the Act.
Accordingly, Lucero was charged with three counts of
knowingly discharging a pollutant in violation of the Act.
See 33 U.S.C. §§ 1319(c)(2)(A); 1311(a). A jury found him
guilty on all counts.
Lucero brings this appeal, raising a number of arguments
for why his conviction should be reversed. Although we
reject most of his contentions, we agree that reversal and
remand is nevertheless required. The Act requires the
government to prove a defendant knew he was discharging
material “into water.” Id. § 1362(6). Because the jury
instructions failed to make this knowledge element clear,
and the error was not harmless, we reverse Lucero’s
conviction and remand for a new trial.
UNITED STATES V. LUCERO 5
I.
A.
Some regulatory background is in order first. In 1972,
Congress passed the Clean Water Act, which, among other
things, criminalizes the discharge of pollutants into
“navigable waters” without an appropriate permit. See
33 U.S.C. §§ 1311(a), 1362(12), 1344. Lucero doesn’t
dispute that he engaged in the discharge of dirt and debris,
that such material constitutes a “pollutant” under the Act,
and that he did not have the requisite permit. Instead, his
appeal centers on the “navigable waters” element of the
statute.
That phrase, though it might seem straightforward on its
face, is complicated by its statutory definition: “The term
‘navigable waters’ means the waters of the United States,
including the territorial seas.” 33 U.S.C. § 1362(7).
Responsibility for deciding what constitutes “waters of the
United States”—also referred to as jurisdictional waters—
rests with two federal agencies: the Environmental
Protection Agency (“EPA”) and the Army Corps of
Engineers. See 33 C.F.R. § 328.3 (2014). They define the
contours of this phrase by promulgating regulations listing
the types of water features that qualify as waters of the
United States. At the time of Lucero’s conduct in 2014, the
regulation included two types of jurisdictional waters at
issue here: (1) “[t]ributaries” of certain other waters of the
United States; and (2) wetlands adjacent to other waters of
6 UNITED STATES V. LUCERO
the United States (that are not themselves wetlands). See id.§ 328.3(a)(5), (7) (2014). 1
The expansive regulatory definition of “waters of the
United States” was reined in somewhat after the Supreme
Court’s fractured decision in Rapanos v. United States,
547 U.S. 715 (2006). Justice Scalia’s plurality opinion held
that water of the United States “includes only those
relatively permanent, standing or continuously flowing
bodies of water forming geographic features that are
described in ordinary parlance as streams, . . . oceans, rivers,
and lakes,” and “wetlands with a continuous surface
connection to bodies that are waters of the United States in
their own right.” Id. at 739, 742 (plurality) (quotation marks
and citation omitted). Justice Kennedy wrote a concurrence
in which he set out a much broader interpretation: wetlands
adjacent to navigable-in-fact waters and even wetlands
adjacent only to nonnavigable tributaries could be
considered jurisdictional waters if there is a “significant
nexus” between the wetlands and traditionally navigable
waters. Id. at 779–82 (Kennedy, J., concurring). We later
adopted Justice Kennedy’s test as our own. N. Cal. River
Watch v. City of Healdsburg (“Healdsburg”), 496 F.3d 993,
999–1000 (9th Cir. 2007).
Since Lucero’s offense in 2014, the agencies have gone
through several different iterations of the “waters of the
1
The regulation also includes (1) waters that are, have been, or could
be used “in interstate or foreign commerce”; (2) all interstate waters;
(3) all “other waters” whose “use, degradation or destruction” could
“affect interstate or foreign commerce”; (4) all “impoundments” of other
jurisdictional waters; and (5) the “territorial seas.” 33 C.F.R.
§ 328.3(a)(1)–(4), (6) (2014).
UNITED STATES V. LUCERO 7
United States” regulation. The current regulation was
promulgated in April 2020. See 33 C.F.R. § 328.3 (2020).
B.
Lucero executed his dumping scheme near the San
Francisco Bay during the summer months of July and
August 2014, which is the “hot and dry” season even in a
normal year. And 2014 was not a normal year—the area was
suffering from a long-term drought. Although there was
evidence that Lucero had “walked the land” with a business
associate at the end of May 2014, the record is bereft of
evidence about the condition of the land at that time or
evidence about whether Lucero would have known that the
sites were inundated with water, rather than dry land.
Needless to say, these areas did not consist of waters that
are actually navigable-in-fact. Rather, application of the
Clean Water Act—and thus, whether the statute was
violated—depended on whether the sites met the regulatory
definition of “waters of the United States.” The government
based its theory for the three areas on their connection to the
Mowry Slough, which is undisputedly a navigable “water of
the United States” near the San Francisco Bay.
The government charged Lucero with two counts based
on discharges into “wetlands” adjacent to the Mowry
Slough. Both of these sites were separated from the slough
by a levee made of packed dirt “to keep water in or out.” The
government also presented evidence that there was a direct
hydrological connection between these two wetlands and the
Mowry Slough. For the first wetland site, the government
presented evidence that the area was connected to a tributary
(“Tributary 1”), which flowed underneath the levee into the
slough. For the second wetland site, the government’s
experts showed that water flowed from the site through a
8 UNITED STATES V. LUCERO
series of tributaries, which ultimately converged into the
slough.
The government’s third charge was based on dirt and
debris dumped into Tributary 1, which was itself a separate
“water of the United States” as a “[t]ributary” of the Mowry
Slough. See 33 C.F.R. § 328.3(a)(5) (2014). Tributary 1
was not navigable, and government experts testified that its
flow was “seasonal.”
A jury convicted Lucero on all three counts, and this
appeal followed. We review each of his legal claims de
novo. See United States v. Weitzenhoff, 35 F.3d 1275, 1283
(9th Cir. 1993). 2
II.
Lucero first argues that the jury instructions used to
convict him erroneously omitted the Clean Water Act’s
knowledge element. Second, he argues that the definition of
“waters of the United States” is unconstitutionally vague.
Finally, Lucero argues that the 2020 regulatory definition of
“waters of the United States” should apply retroactively to
his case. While we reject the latter two claims, we agree with
Lucero that the Act requires a knowledge element not
submitted to the jury and that he is entitled to a new trial.
2
In a concurrently filed memorandum disposition, we address
Lucero’s other arguments that the district court committed various trial
errors by allowing certain expert testimony, excluding a declaration from
an EPA agent, and refusing to give the jury instruction he requested.
UNITED STATES V. LUCERO 9
A.
We first address the knowledge requirement of 33 U.S.C.
§ 1319(c)(2)(A), whether it was adequately conveyed by the
jury instructions, and whether any error was harmless.
1.
Section 1319(c) creates criminal penalties for violation
of the Clean Water Act. 33 U.S.C. § 1319(c). In particular,
§ 1319(c)(2)(A) makes it a felony for anyone to “knowingly
violate[] section 1311” of the Act. Id. § 1319(c)(2)(A).
Section 1311, in turn, provides that “the discharge of any
pollutant by any person shall be unlawful” without a permit.
Id. § 1311(a). When the word “knowingly” precedes the
verb “violate,” it applies to the verb’s direct object, which in
this case is § 1311. See Rehaif v. United States, 139 S. Ct.
2191, 2195 (2019). So if we stopped here, this statutory
structure indicates that a person simply needs to
“knowingly” “discharge . . . any pollutant” without a permit
to be found guilty of the crime.
But like Russian nesting dolls, the statutory definitions
keep going:
• The phrase “discharge of a pollutant” is
defined as “any addition of any pollutant
to navigable waters from any point
source.” 33 U.S.C. § 1362(12).
o The word “pollutant” is defined as
one of multiple enumerated
substances, such as dredged spoil or
10 UNITED STATES V. LUCERO
solid waste, “discharged into water.”
Id. § 1362(6). 3
o The term “navigable waters” is
defined as “waters of the United
States.” Id. § 1362(7).
o “Point source” means “any
discernible, confined and discrete
conveyance, including but not limited
to any pipe, ditch, channel, tunnel,
conduit, . . . from which pollutants are
or may be discharged.” Id.
§ 1362(14).
Stringing together these definitions gives us a statute that
prohibits any person from “knowingly” engaging in the
“addition of any” listed substance “discharged into water”
3
The full definition of “pollutant” is “dredged spoil, solid waste,
incinerator residue, sewage, garbage, sewage sludge, munitions,
chemical wastes, biological materials, radioactive materials, heat,
wrecked or discarded equipment, rock, sand, cellar dirt and industrial,
municipal, and agricultural waste discharged into water.” 33 U.S.C.
§ 1362(6). We read the phrase “discharged into water” as applying to all
the enumerated substances in the list. Under the series-qualifier canon,
“when there is a straightforward, parallel construction that involves all
nouns or verbs in a series, a . . . postpositive modifier normally applies
to the entire series.” A. Scalia & B. Garner, Reading Law: The
Interpretation of Legal Texts 147 (2012); see also United States v.
Deaton, 209 F.3d 331, 335 (4th Cir. 2000) (“The definition of pollutant,
in turn, specifically includes ‘dredged spoil’ that has been ‘discharged
into water.’”); Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs,
145 F.3d 1399, 1410 (D.C. Cir. 1998) (Silberman, J., concurring) (“But
rock and sand only become pollutants, according to the statute, once they
are ‘discharged into water.’”); United States v. Pozsgai, 999 F.2d 719,
725 (3d Cir. 1993) (“The Act defines ‘pollutant’ to mean ‘dredged spoil,
rock, sand’ and other materials ‘discharged into water[.]’”).
UNITED STATES V. LUCERO 11
“to waters of the United States” “from any point source.”
33 U.S.C. §§ 1319(c)(2)(A), 1311(a), 1362(6), (7), (12).
Notably, as the Third Circuit recognized, the Act creates an
“apparent redundancy” because “into water” and “to waters
of the United States” appear together back-to-back. United
States v. Pozsgai, 999 F.2d 719, 726 (3d Cir. 1993). The
question then becomes how the phrases “into water” and “to
waters of the United States” “co-exist in this definition.” Id. 4
The parties offer competing views on how the court
should resolve this tension. Lucero essentially asks us to
read out the phrase “discharged into water” from the
statutory definition of pollutant. In his view, “knowingly”
must then reach the phrase “to waters of the United States”
as the prepositional phrase modifying “addition of any
pollutant,” and the government must prove his knowledge of
that element. The government urges us to give effect to both
phrases—“into water” and “to waters of the United
States”—by treating the former as the prepositional phrase
modifying “addition of any pollutant” and the latter as a
jurisdictional element. Under the government’s view, the
knowledge requirement only extends to “into water.”
We think the correct interpretation of the Clean Water
Act supports the government’s position. First, we are
unwilling to simply read out the phrase “discharged into
water” from the definition of “pollutant.” 33 U.S.C.
§ 1362(6). Indeed, “to ignore the plain text” of a statute is
“something we are not at liberty to d[o].” In re DBSI, Inc.,
4
The Third Circuit answered the question by simply ignoring the
“into water” part of the “pollutant” definition. See Pozsgai, 999 F.2d
at 726–27 & n.7. The court, in essence, treated the term “to navigable
waters” from § 1362(12) as modifying the term “discharged into water”
from § 1362(6). As explained below, we disagree with this analysis.
12 UNITED STATES V. LUCERO
869 F.3d 1004, 1013 (9th Cir. 2017). Even when the law
includes unusual or mismatched provisions, “[o]ur task is to
apply the text, not to improve upon it.” Pavelic & LeFlore
v. Marvel Entm’t Grp., 493 U.S. 120, 126 (1989). After all,
we have “no roving license” to disregard statutory text to
make our jobs easier in interpreting it. Michigan v. Bay Mills
Indian Cmty., 572 U.S. 782, 794 (2014).
The “apparent redundancy” can also be readily explained
by the “distinctive role interstate commerce elements play in
federal criminal law.” Luna Torres v. Lynch, 136 S. Ct.
1619, 1624 (2016). In our federal system, Congress cannot
punish crimes generally, but must tie criminal law to “one of
its constitutionally enumerated powers, such as the authority
to regulate interstate commerce.” Id. As a result, most
federal offenses consist of both “substantive elements” and
“a jurisdictional one,” which “spell[s] out the warrant for
Congress to legislate.” Id. Sometimes it can be difficult to
discern the difference between the two, but the Court has
explained that substantive elements are those that “primarily
define[] the behavior that the statute calls a violation of
federal law,” or relate to “‘the harm or evil’ the law seeks to
prevent.” Id. (alteration in original) (internal quotation
marks and citations omitted). Jurisdictional elements, on the
other hand, “do not describe the evil Congress seeks to
prevent, but instead simply ensure that the Federal
Government has the constitutional authority to regulate the
defendant’s conduct (normally, . . . through its Commerce
Clause power).” Rehaif, 139 S. Ct. at 2196 (quoting Luna
Torres, 136 S.Ct. at 1630–31). In other words, a
jurisdictional element is one that identifies “the factor that
makes the [conduct] an appropriate subject for federal
concern,” United States v. Yermian, 468 U.S. 63, 68 (1984),
or the “‘fact that confers federal jurisdiction,’” United States
UNITED STATES V. LUCERO 13
v. Jinian, 725 F.3d 954, 965 (9th Cir. 2013) (quoting United
States v. Feola, 420 U.S. 671, 676 n.9 (1975)).
In enacting the Clean Water Act, Congress wanted to
pass the broadest possible protections against water
pollution. See United States v. Riverside Bayview Homes,
Inc., 474 U.S. 121, 133 (1985). The Act’s stated objective
is “to restore and maintain the chemical, physical, and
biological integrity of the Nation’s waters.” 33 U.S.C.
§ 1251(a). The Act is “an all-encompassing program of
water pollution regulation.” Milwaukee v. Illinois, 451 U.S.
304, 318 (1981). And the phrase “into water” supports its
statutory objective by broadly proscribing the dumping of
pollutants “into” any “water” from any conveyance. See
Riverside Bayview, 474 U.S. at 133 (holding that “Congress
chose to define the waters covered by the Act broadly.”). Put
differently, the phrase tells us where the “pollutant” must be
added to constitute the evil—water pollution—that Congress
sought to prevent through the Clean Water Act: from a point
source “into water.” Consequently, the phrase “into water”
is an integral part of § 1311(a)’s substantive prohibition. Cf.
County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462,
1481 & n.3 (2020) (Thomas, J., dissenting) (doubting that
the Act would be violated if a substance was discharged into
“the air” based on definition of “pollutant”).
The phrase “to waters of the United States,” on the other
hand, is a jurisdictional element, connecting the Clean Water
Act to Congress’s Commerce Clause powers. Because
Congress’s authority does not extend to every “water” in the
United States, the Act includes a jurisdictional hook to
confine it to the federal government’s constitutional
boundaries. As the Fourth Circuit recognized, “‘[w]aters of
the United States’ in the [Act] is a classic jurisdictional
element, which situates Congress’ authority to enact the
14 UNITED STATES V. LUCERO
statute in ‘its traditional jurisdiction over waters that were or
had been navigable in fact or which could reasonably be so
made.’” United States v. Cooper, 482 F.3d 658, 664 (4th
Cir. 2007) (quoting Solid Waste Agency of N. Cook Cty v.
U.S. Army Corps of Eng’rs, 531 U.S. 159, 172 (2001)); see
also Rapanos, 547 U.S. at 724 (plurality) (observing that the
agencies “sought to extend the definition of ‘the waters of
the United States’ to the outer limits of Congress’s
commerce power”). Thus, the Act’s explicit goal is to
protect water in the United States as expansively as possible,
and the “to waters of the United States” element is the “fact
that confers federal jurisdiction.” Jinian, 725 F.3d at 965.
Once fully understood then, the Clean Water Act’s
apparent redundancy is harmonized. Section 1311(a) has
both a substantive prohibition (the addition of pollutants
“into water” from a point source) and a jurisdictional hook
(limiting that water to “waters of the United States.”). While
not the most artfully drafted legislation, in our view, no
reason exists to depart from its plain language or to judicially
excise some of its words.
From here, the question of how far the Act’s knowledge
element extends is straightforward. First, under plain
grammatical rules, it’s clear that § 1319(c)(2)’s knowledge
requirement must extend to § 1311(a)’s substantive
elements, including “into water.” See 33 U.S.C.
§§ 1319(c)(2)(A), 1311(a), 1362(6), (12). “In ordinary
English, where a transitive verb has an object, listeners in
most contexts assume that an adverb (such as knowingly)
that modifies the transitive verb tells the listener how the
subject performed the entire action, including the object as
set forth in the sentence.” Flores-Figueroa v. United States,
556 U.S. 646, 650 (2009). Put another way, “once
[‘knowingly’] is understood to modify the object of those
UNITED STATES V. LUCERO 15
verbs, there is no reason to believe it does not extend to the
phrase which limits that object[.]” Id. at 657 (Scalia, J.,
concurring). 5 Here, the statutory phrase forms a single
action: the “addition of any” enumerated substance
“discharged into water” from a point source. See 33 U.S.C.
§§ 1311(a), 1362(6), (12) (emphasis added). Accordingly,
for a defendant to “knowingly” add a pollutant in violation
of the Act, he must know that he discharged an enumerated
substance from a conveyance, and that the substance was
“discharged into water.” Id. § 1362(6).
This interpretation also accords with the longstanding
presumption that criminal statutes require knowledge of the
statutory elements that “‘criminalize otherwise innocent
conduct.’” Rehaif, 139 S. Ct. at 2195 (quoting United States
v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994)); see also
Elonis v. United States, 135 S. Ct. 2001, 2009 (2015). The
statutory definition of “pollutant” contains a long list of
substances, such as sand and rocks, which are not inherently
wrongful to discharge in the abstract. 33 U.S.C. § 1362(6).
But when these seemingly innocuous substances are added
from a point source to water—regardless whether it is
navigable water—then the discharge creates water pollution.
After all, “[v]irtually all water, polluted or not, eventually
makes its way to navigable water.” Hawaii Wildlife Fund,
5
The phrase “into water” is not the object of the verbal form of
“addition”; it is a prepositional phrase. But in any event, the rationale of
Flores—that an adverb ordinarily tells the listener how the “entire
action” was performed—applies with equal force to this prepositional
phrase. Indeed, Flores itself offered a hypothetical involving a
prepositional phrase. See 556 U.S. at 650 (“[I]f a bank official says,
‘Smith knowingly transferred the funds to his brother’s account,’ we
would normally understand the bank official’s statement as telling us that
Smith knew the account was his brother’s.”).
16 UNITED STATES V. LUCERO
140 S. Ct. at 1470. 6 Thus, requiring knowledge of the
defendant’s dumping of the substance “into water” from a
point source ensures that he knows he’s committing the
crime targeted by Congress—water pollution.
On the other hand, when it comes to jurisdictional
elements, “the default rule flips: Courts assume that
Congress wanted such an element to stand outside the
otherwise applicable mens rea requirement.” Luna Torres,
136 S. Ct. at 1631. That’s because “jurisdictional elements
normally have nothing to do with the wrongfulness of the
defendant’s conduct[.]” Rehaif, 139 S. Ct. at 2196. Lucero
suggests that dumping into “navigable waters” is (at least
partly) the criminalized conduct and, thus, the knowledge
requirement should apply to it. But nothing in the Clean
Water Act indicates that Congress was only concerned about
the welfare of “navigable waters” as opposed to the
country’s waters as a whole. In fact, Congress expressly
stated its goal to protect the “integrity of the Nation’s
waters” in general while recognizing the States’ role in
achieving this goal. See 33 U.S.C. §§ 1251(a)–(b). Thus,
neither the Clean Water Act’s text nor stated purpose
suggests that Congress wanted only discharges into
“navigable waters” to be “in the mind of the actor at the time
he perpetrates the act made criminal by the federal statute.”
Feola, 420 U.S. at 676 n.9 (defining when an element
becomes substantive for purposes of a knowledge
6
The concern for water pollution is not new. At common law, “[b]y
far the most commonly used doctrines protecting surface water quality
are riparian rights and nuisance.” Peter N. Davis, Federal and State
Water Quality Regulation and Law in Missouri, 55 Mo. L. Rev. 411, 484
(1990); see also Roger Meiners & Bruce Yandle, Common Law and the
Conceit of Modern Environmental Policy, 7 Geo. Mason L. Rev. 923,
938–41 (1999) (describing development of riparian rights at common
law).
UNITED STATES V. LUCERO 17
requirement). 7 We think the better reading of the statute is
to recognize Congress’s broad concern for water pollution
and limit “waters of the United States” to its jurisdictional
moorings.
In sum, the government need not prove that the
defendant knew he discharged the pollutant in “to waters of
the United States.” Instead, the knowledge requirement
imposed by § 1319(c)(2)(A) compels the government to
prove only that a defendant knew he discharged a substance
“into water.”
2.
Our dissenting colleague raises thoughtful critiques to
our approach, and we agree that this statute is not a model of
clarity. Ultimately, however, we do not believe the dissent’s
critiques can carry the day.
The dissent primarily argues that our interpretation of the
statute would be absurd because treating the phrase
“discharged into water” as part of § 1319(c)’s substantive
prohibition would mean that the CWA criminalizes “all sorts
of innocent acts,” like “heating a tea kettle,” “using the
restroom,” or “skipping a rock across a pond.” See Dissent
at 36. Our dissenting colleague also believes that our
interpretation is both underinclusive and overinclusive of the
7
Likewise, the government refers to the term “waters of the United
States” as “jurisdictional waters.” See, e.g., 33 C.F.R. § 328.3(a) (2020);
Clean Water Rule: Definition of “Waters of the United States”, 80 Fed.
Reg. 37054-01, 37057 (June 29, 2015) (“In this final rule, the agencies
define ‘waters of the United States’ to include eight categories of
jurisdictional waters.”).
18 UNITED STATES V. LUCERO
outcomes the CWA is supposed to prohibit. Id. at 36, 41.
We disagree with all these points.
As a threshold matter, we have not seen the absurdity
canon applied in the manner the dissent suggests. For one,
we’ve never seen the canon used to determine whether an
element is jurisdictional. More fundamentally, though, our
dissenting colleague takes our reading of the knowledge
requirement of three words in the statute, ignores the rest of
the law, and then declares our interpretation absurd. But that
is not how we read statutes and that is not how the absurdity
canon was meant to be applied. As the Supreme Court has
reminded us, this canon is to be employed sparingly. The
absurdity doctrine will “override the literal terms of a statute
only under rare and exceptional circumstances.” Crooks v.
Harrelson, 282 U.S. 55, 60 (1930). “[T]o justify a departure
from the letter of the law upon that ground, the absurdity
must be so gross as to shock the general moral or common
sense.” Id. “[O]therwise, we might be rewriting the statute
rather than correcting a technical mistake.” X-Citement
Video, 513 U.S. at 82 (Scalia, J., dissenting).
We think this means, at a minimum, that the absurdity
canon should only be used to evaluate the statute in
context—not myopically focusing on a single three-word
phrase and then declaring freedom from the legislative text
because of that phrase’s absurd results. Indeed, “no
interpretive fault is more common than the failure to follow
the whole-text canon, which calls on the judicial interpreter
to consider the entire text, in view of its structure and of the
physical and logical relation of its many parts.” Antonin
Scalia & Bryan Garner, Reading Law: The Interpretation of
Legal Texts 153 (2012). Employing the absurdity canon in
this way—devoid of the context of the statute—comes
dangerously close to judicially creating a “roving license” to
UNITED STATES V. LUCERO 19
just strike troublesome or disfavored statutory text. Bay
Mills, 572 U.S. at 794. 8
Moreover, § 1319, in context, leads to no absurdity
whatsoever. While we read the Act as requiring knowledge
of the pollutant being “discharged into water,” such as
ponds, lakes, streams, and maybe even a kettle of tea, that is
only one part of the statute. Construing “water” in context
with the Act’s other elements, especially the requirement
that any discharge be from a “point source,” ensures that the
CWA criminalizes only those activities falling within
“reasonable notion[s] of water pollution.” See Dissent at 36.
A defendant only violates the Act if he knowingly discharges
a pollutant into water from a conveyance, such as a “pipe,
ditch, channel, tunnel, conduit, well, discrete fissure,
container, rolling stock, concentrated animal feeding
operation, or vessel or other floating craft.” See 33 U.S.C.
§ 1362(14). This effectively requires that the “water”
involved be an equivalent to a body of water, not simply a
droplet of H2O as the dissent thinks. Reading these two
phrases together therefore eliminates the possibility that
heating tea kettles, skipping rocks, using the restroom, and
the other parade of horribles imagined by the dissent would
come within the CWA’s ambit. See Dissent at 36. 9 Instead,
8
Our dissenting colleague draws on Holy Trinity Church v. United
States, 143 U.S. 457 (1892) for support. Dissent at 37. But the approach
taken in that case has long been disfavored. See Antonin Scalia, A
Matter of Interpretation 18 (1997) (describing Holy Trinity as the
“prototypical case involving the triumph of supposed ‘legislative intent’
(a handy cover for judicial intent) over the text of the law”).
9
Indeed, looking at the CWA without context would render our
dissenting colleague’s interpretation absurd as well. If we were to ignore
the point-source element as the dissent does, that interpretation would
mean that skipping rocks at the beach or swimming in the ocean would
20 UNITED STATES V. LUCERO
the best and most natural way to read the provision is that it
prohibits polluting our Nation’s waters by way of
conveyances—i.e., water pollution. As a result, the dissent’s
charge of an absurd “overinclusiveness” falls flat; even
without the jurisdictional element, our reading of the CWA
doesn’t extend to innocuous acts. Accordingly, read in light
of the full statute, the CWA’s prohibition as “mandated by
its plain language is not absurd at all, much less sufficiently
absurd to justify departure from a plain words
interpretation.” Safe Air For Everyone v. EPA, 488 F.3d
1088, 1099 (9th Cir. 2007).
The dissent also faults our interpretation for being
“underinclusive” because the term “water” alone might not
cover pollution of “arroyos, areas adjacent to water, or other
dry areas” that would constitute “waters of the United
States.” See Dissent at 41 (citing Oxford English
Dictionary). But the Supreme Court has expressly called it
a “simplistic response” to look only to the “conventionally
identifiable” definition of waters in light of “the realities of
the problem of water pollution that the Clean Water Act was
intended to combat.” Riverside Bayview, 474 U.S. at 131–
32. The Supreme Court long ago observed that “the
transition from water to solid ground” is “far from obvious.”
Id. at 132. Rather, “between open waters and dry land”
exists “a huge array of areas that are not wholly aquatic but
nevertheless fall far short of being dry land.” Id. at 132; see
also Rapanos, 547 U.S. at 740 (plurality) (discussing the
violate the law. See 33 U.S.C. § 1362(7) (defining “navigable waters”
to include the “territorial seas”). Under that reading, hundreds of
thousands of vacationers would be in legal jeopardy every summer. Of
course, that would be an absurdity. But, in context of the whole statute,
the law does no such thing. Accordingly, this misplaced absurdity
exercise doesn’t justify the dissent’s extension of the mens rea
requirement to the “waters of the United States” element.
UNITED STATES V. LUCERO 21
“inherent ambiguity in drawing the boundaries of any
‘waters’”). Accordingly, the Court has held that the broader
term “waters” reasonably includes the narrower term
“waters of the United States.” Riverside Bayview, 474 U.S.
at 132–33 (granting deference to agency’s definition of
waters based on “evident breadth of congressional concern
for protection of water quality and aquatic ecosystems”).
Nothing in our opinion forecloses “arroyos, areas adjacent to
water, or other dry areas,” see Dissent at 41, from being
treated as “water” under 33 U.S.C. § 1362(6). 10
Finally, while the dissent recognizes that “waters of the
United States” is jurisdictional, it nevertheless declines to
apply the default presumption that mens rea does not apply
to such elements. See Luna Torres, 136 S. Ct. at 1631(“Courts assume that Congress wanted [a jurisdictional]
element to stand outside the otherwise applicable mens rea
requirement.”). Notably, the dissent fails to identify any
other case, and we have found none, holding that a
demonstrably jurisdictional element is in fact something
more—thus, requiring mens rea. It appears, then, that the
dissent would have us be the first to so hold.
***
We agree with the dissent that jurists of good faith can
disagree with the meaning of the CWA here. Dissent at 45.
But we believe that the weight of precedent and the
traditional canons of statutory interpretation require us to
hold that the knowledge requirement of § 1319(c)(2)(A)
10
Tellingly, we are adopting the government’s position here. The
government has the greatest interest in ensuring the ability to prosecute
cases under the CWA and it does not share the dissent’s concern.
22 UNITED STATES V. LUCERO
extends only to “discharge into water” as part § 1311’s
prohibition, not to “waters of the United States.”
3.
With assurances that we have the proper understanding
of the statute’s knowledge requirement, we now turn to
whether the jury was properly instructed, and if not, whether
that error was harmless. We look to “the instructions as a
whole” to determine if the substance of the law was “fairly
and correctly covered.” Dang v. Cross, 422 F.3d 800, 805
(9th Cir. 2005) ((internal quotation marks and citations
omitted). The government bears the burden of proving
beyond a reasonable doubt that the error was harmless.
United States v. Benamor, 937 F.3d 1182, 1190 (9th Cir.
2019).
The jury instructions listed the following elements:
(1) That on or about the dates charged, the
defendant knowingly discharged or
caused to be discharged a pollutant, in
this case, fill material;
(2) That the pollutant was discharged from a
point source;
(3) That the discharge was to a “water of the
United States;” and
(4) That the defendant had no permit from
the United States Army Corps of
Engineers to discharge the pollutant.
Nowhere do these instructions state that Lucero had to
know that the pollutant was discharged “into water.” The
UNITED STATES V. LUCERO 23
only knowledge requirement is with respect to the first
element: the discharge of a pollutant, in this case, fill
material. Although the jury instructions elsewhere define
“fill material” as “material placed in ‘waters of the United
States,’” this definition is found five pages away, and the
instructions do not indicate that Lucero had to know the
material was placed in “waters of the United States” to meet
the definition of fill material. The instructions also explicitly
say that “the government is not required to prove that
defendant knew that the material came within the legal
definition of ‘pollutant.’” So the most straightforward
reading of the instructions is that the jury needed to find only
that Lucero knowingly discharged the fill material—not that
he knew the fill material was added “into water.” As
explained above, this erroneously omits the statute’s mens
rea element.
Nor can we say this was harmless error. Under harmless
error analysis, courts may affirm a conviction, even if based
on erroneous jury instructions, where it is “clear beyond a
reasonable doubt that a rational jury would have found the
defendant guilty absent the error[.]” Neder v. United States,
527 U.S. 1, 18 (1999). Before we do so, however, we
demand “strong and convincing evidence” that the jury
would have reached the same result even if it had been
properly instructed. United States v. Alferahin, 433 F.3d
1148, 1158 (9th Cir. 2006) (citations omitted). When the
evidence relating to the omitted element is “neither
overwhelming nor uncontested,” the error is not harmless.
United States v. Montoya-Gaxiola, 796 F.3d 1118, 1125 (9th
Cir. 2015).
The record evidence that Lucero knew he discharged into
water is both underwhelming and contested. Although there
is evidence about the wet conditions and wetland-loving
24 UNITED STATES V. LUCERO
vegetation in the area where Lucero dumped the dirt and
debris, the site’s conditions fluctuated depending on whether
it was the wet or dry season—and Lucero dumped during the
dry season following a drought. The only evidence that
related specifically to Lucero was testimony that he “walked
the land” with an associate towards the end of May 2014.
But there is no indication of what the land looked like at the
time, or whether this walk would have revealed to Lucero
that the area was inundated with water rather than simply dry
land. Finally, Lucero made an offer of proof in case the
district court adopted his requested knowledge instruction.
See United States v. Nordby, 225 F.3d 1053, 1061 n.6 (9th
Cir. 2000) (recognizing that the court “look[s] to the trial
record and [the defendant’s] representations on appeal”
about what evidence he would have adduced regarding the
omitted element), overruled on other grounds by United
States v. Buckland, 289 F.3d 558 (9th Cir. 2002). This
evidence included expert testimony, testimony from local
police, and statements from federal officials about the
difficulty involved in identifying this area as a wetland.
Lucero also would have presented photographs of the sites,
which he claims show them to be dry without visible signs
of water.
On this record, we cannot say that a properly instructed
jury clearly would have found Lucero guilty. We therefore
reverse Lucero’s conviction and remand for a new trial with
jury instructions that make clear the government’s burden to
prove that Lucero knowingly discharged fill material “into
water.”
B.
Lucero also argues that the definition of “waters of the
United States,” especially the meaning of “wetlands” and
“tributaries,” is unconstitutionally vague. We disagree.
UNITED STATES V. LUCERO 25
A criminal law can be void if it is “so vague that it fails
to give ordinary people fair notice of the conduct it punishes,
or so standardless that it invites arbitrary enforcement.”
Johnson v. United States, 576 U.S. 591, 595 (2015). This is
true regardless of whether the crime is codified in a statute
or a regulation. See United States v. Elias, 269 F.3d 1003,
1015 (9th Cir. 2001). But a law is not unconstitutionally
vague simply because it is difficult to determine whether it
has been violated in a particular case. Instead, there must be
an unreasonable amount of indeterminacy or subjectivity
regarding what is even being prohibited in the first place.
See United States v. Williams, 553 U.S. 285, 306 (2008); see
also Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971)
(explaining that statute criminalizing “annoying” others was
“vague, not in the sense that it requires a person to conform
his conduct to an imprecise but comprehensible normative
standard, but rather in the sense that no standard of conduct
is specified at all”).
Likewise, in considering vagueness challenges, we must
acknowledge that, “[c]ondemned to the use of words, we can
never expect mathematical certainty from our language.”
Grayned v. City of Rockford, 408 U.S. 104, 110 (1972); see
also Williams, 553 U.S. at 304 (“[P]erfect clarity and precise
guidance have never been required even of regulations that
restrict [First Amendment] expressive activity,” which is
subject to a heightened vagueness standard) (citation
omitted). For this reason, we consider the extent to which a
more definite law is simply not possible. Kolender v.
Lawson, 461 U.S. 352, 361 (1983) (“Although due process
does not require impossible standards of clarity, this is not a
case where further precision in the statutory language is
either impossible or impractical.”) (internal quotation marks
and citations omitted). A law may be “marked by flexibility
and reasonable breadth, rather than meticulous specificity,”
26 UNITED STATES V. LUCERO
but it will not be void for vagueness if “it is clear what the
ordinance as a whole prohibits.” Grayned, 408 U.S. at 110(internal quotation marks and citations omitted).
Applying these principles to the Clean Water Act, we
hold that the regulation defining “waters of the United
States” at the time of Lucero’s trial is not unconstitutionally
vague. Although the definitions are complex, they
nevertheless provide an ascertainable standard for when
“wetlands” and “tributaries” constitute jurisdictional
waters. 11
1.
Take wetlands first. An area is classified as “wetlands”
when inundated with water “at a frequency and duration
sufficient to support, and that under normal circumstances
do support, a prevalence of vegetation typically adapted for
life in saturated soil conditions,” such as “swamps, marshes,
bogs, and similar areas.” 33 C.F.R. § 328.3(b) (2014). Such
wetlands become “waters of the United States” when
“adjacent”—meaning, “bordering, contiguous, or
neighboring”—to other jurisdictional waters. Id.§ 328.3(a)(7), (c). Although it may be time-consuming,
difficult, and expensive to determine whether a given area
falls within this definition, the standard for making this
determination is nevertheless clear. “That close cases may
arise in applying this test does not make it unconstitutional,
given there will always be an inherent but permissible degree
of uncertainty in applying any standards-based test.”
11
We analyze whether the law defining jurisdictional waters is
vague as construed by the Court’s decision in Rapanos. See United
States v. Lanier, 520 U.S. 259, 266 (1997) (holding that courts should
look to prior judicial decisions interpreting a statute in considering
whether it is vague).
UNITED STATES V. LUCERO 27
Yamada v. Snipes, 786 F.3d 1182, 1190–91 (9th Cir. 2015)
(emphasis added).
Lucero’s vagueness challenge centers on the concept of
“adjacency.” 12 He contends that the law was made
unconstitutionally vague in light of Justice Kennedy’s
concurrence in Rapanos. Justice Kennedy explained that
wetlands must, either “alone or in combination with
similarly situated lands in the region,” have a “significant
nexus” to traditionally navigable waters to qualify as
jurisdictional waters under the Act. Rapanos, 547 U.S.
at 780 (Kennedy, J., concurring). 13 Justice Kennedy further
12
Lucero focuses much of his argument on the fact that the Court
has struggled to define when wetlands can constitute jurisdictional
waters, particularly in the fractured opinions from Rapanos. But the
disagreement in Rapanos did not arise because the law was hopelessly
vague. Rather, it arose because of competing views about the proper
scope of the regulations in light of the statutory text, the Commerce
Clause, and federalism principles. Rapanos, 547 U.S. at 731, 737–38
(plurality); id. at 776–77, 782–83 (Kennedy, J., concurring); id. at 803–
04 (Stevens, J., dissenting).
13
Lucero and amici argue that the regulation’s vagueness is
compounded by the confusion about which opinion in Rapanos
controls—Justice Scalia’s plurality or Justice Kennedy’s concurrence.
They are correct that, after United States v. Davis, 825 F.3d 1014 (9th
Cir. 2016) (en banc), our caselaw regarding how to read a fractured Court
opinion has shifted. We now look to the “narrowest” opinion by
reasoning rather than results. Id. at 1021.
But we need not determine here which opinion in Rapanos controls
in light of Davis. The “touchstone [of the vagueness inquiry] is whether
the statute, either standing alone or as construed, made it reasonably clear
at the relevant time that the defendant’s conduct was criminal.” Lanier,
520 U.S. at 267 (emphasis added). At the time of Lucero’s offense, there
was no confusion in the Ninth Circuit: we had squarely adopted Justice
Kennedy’s concurrence as controlling. See Healdsburg, 496 F.3d
at 999–1000. Any confusion about which Rapanos opinion controlled
28 UNITED STATES V. LUCERO
clarified that a “significant nexus” exists when the wetlands
“significantly affect the chemical, physical, and biological
integrity” of traditional navigable water. Id. Finally, Justice
Kennedy added that the nexus requirement can be readily
inferred if the wetlands are adjacent to navigable-in-fact
water by the adjacency alone. Id.Although phrases like “similarly situated” and
“significant nexus” add some imprecision to the standard for
determining when a wetland constitutes jurisdictional
waters, both phrases provide an ascertainable, qualitative
standard akin to others found in the law. See Johnson,
576 U.S. at 603–04 (explaining that standards like
“substantial risk,” “grave risk,” and “unreasonable risk” are
not vague when applied to actual conduct, rather than an
imaginary crime); United States v. Backlund, 689 F.3d 986,
997 (9th Cir. 2012) (holding that “likely to cause a
significant surface disturbance” standard not
unconstitutionally vague). Plus, “similarly situated” has
been clarified through regulatory guidance to mean other
“wetlands adjacent to the same tributary.” Orchard Hill
Bldg. Co. v. U.S. Army Corps of Eng’rs, 893 F.3d 1017, 1022
(7th Cir. 2018) (describing post-Rapanos guidance issued by
the agencies). Accordingly, even when wetlands require a
“significant nexus” to traditionally navigable waters, the law
is not unconstitutionally vague.
did not exist until Davis in 2016. Lucero, then, was “on notice from . . .
Healdsburg at the time of his [dumping] activities that wetlands and non-
navigable tributaries are subject to CWA jurisdiction if the wetlands”
satisfy Justice Kennedy’s significant nexus test. United States v.
Robertson, 875 F.3d 1281, 1293 (9th Cir. 2017), cert. granted, judgment
vacated, 139 S. Ct. 1543 (2019). We express no view on whether Justice
Kennedy’s concurrence continues to be the controlling decision from
Rapanos following our decision in Davis.
UNITED STATES V. LUCERO 29
Moreover, the facts of this case make the question much
simpler. The government argued that the wetlands where
Lucero dumped debris were adjacent to the Mowry Slough,
which is a traditional navigable-in-fact water. As the
government’s counsel argued,
[Lucero] dumped on property that you know
. . . are adjacent to Mowry Slough. They
border them. They are contiguous to them.
And they are certainly neighboring them.
They are close. And you can infer that that
adjacency means that these lands have a
significant nexus to the Slough.
Under Justice Kennedy’s concurrence, these straightforward
facts would be sufficient to infer the wetlands were “waters
of the United States” if accepted by the jury. The
government’s proof demonstrates that the regulation is not
vague as applied to Lucero’s conduct. See United States v.
Harris, 705 F.3d 929, 930, 932 (9th Cir. 2013) (relying on
case-specific facts to reject as-applied vagueness challenge).
2.
Lucero also attacks the definition of “tributary” as
unconstitutionally vague as applied to him. Although that
term is not defined, this court has long recognized the
common understanding of a tributary as “[a] stream which
contributes its flow to a larger stream or other body of
water.” Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d
526, 533 (9th Cir. 2001) (citation omitted). This is an
ordinary word, which has been given its ordinary meaning
in prior caselaw. The jury instructions in Lucero’s trial
tracked this definition. Hence, the standard for identifying a
tributary is not impermissibly vague.
30 UNITED STATES V. LUCERO
Lucero tries to inject vagueness with two different
arguments, neither of which is convincing. First, he argues
that it is unclear whether a water must be “relatively
permanent” or if it can be “seasonal or intermittent” to still
qualify as a “tributary” under the Act. But there was no such
confusion: at the time of Lucero’s conduct, we had already
held that seasonal streams can constitute tributaries. See
Headwaters, 243 F.3d at 534. After Rapanos, we again
affirmed our conclusion that “intermittent streams (at least
those that are seasonal) can be waters of the United States.”
United States v. Moses, 496 F.3d 984, 991 (9th Cir. 2007).
Lucero next argues that the definition of tributary is
vague because it is unclear whether a jury must find an
“ordinary high water mark” (“OHWM”). But that definition
has nothing to do with Tributary 1. An OHWM is relevant
only to determining whether an ephemeral stream is a water
of the United States. Rapanos, 547 U.S. at 781 (Kennedy,
J., concurring); see also Final Notice of Issuance and
Modification of Nationwide Permits, 65 Fed. Reg. 12818,
12823 (March 9, 2000) (“An ephemeral stream is a water of
the United States, provided it has an OHWM. An ephemeral
stream that does not have an OHWM is not a water of the
United States.”). That means a seasonal, continuously
flowing tributary can be a jurisdictional “tributary” without
having an OHWM. See 33 C.F.R. § 328.3(a)(5) (2014).
Here, there was undisputed evidence that Tributary 1 had a
continuous (albeit seasonal) flow. Thus, whatever confusion
might exist about jurisdiction over ephemeral streams, it is
not relevant for Tributary 1. 14
14
Lucero also argues that it was not clear whether the government
must show a “significant nexus” between Tributary 1 and a navigable
water, or if Justice Kennedy’s “significant nexus” test is only for
UNITED STATES V. LUCERO 31
C.
Finally, we address whether the newly promulgated
2020 regulation applies to Lucero’s case. Lucero was
convicted under the “water of the United States” regulation
that was operative at the time of his offense conduct in 2014.
See 33 C.F.R. § 328.3 (2014). Since then, the regulation has
been revised several times. As relevant here, the agencies
promulgated a new rule in April 2020 that substantially
narrowed the definition of “waters of the United States” (and
in turn, the scope of the Clean Water Act). See The
Navigable Waters Protection Rule: Definition of “Waters of
the United States,” 85 Fed. Reg. 22,250 (April 21, 2020)
(“2020 Rule”).
The 2020 Rule represents a change in the law, which
applies prospectively only and not to Lucero’s case. Cf.
Landgraf v. USI Film Prods., 511 U.S. 244, 247 (1994)
(holding that amendment to Title VII of Civil Rights Act did
not apply retroactively, even to cases pending on appeal).
There is a general presumption that “‘congressional
enactments and administrative rules will not be construed to
have retroactive effect unless their language requires this
result.’” Id. at 264 (quoting Bowen v. Georgetown Univ.
Hosp., 488 U.S. 204, 208 (1988)); see also Consumer Fin.
wetlands, rather than tributaries. Compare Rapanos, 547 U.S. at 767(explaining that jurisdiction depends on “the connection [e.g., a
significant nexus] between a nonnavigable water or wetland and a
navigable water”); with id. at 787 (remanding for determination of
whether the “wetlands at issue possess a significant nexus with navigable
waters”) (emphases added). But regardless, the jury instructions
required the government to prove a significant nexus between Tributary
1 and Mowry Slough. So any error in imposing a significant-nexus
element for Tributary 1 cuts in Lucero’s favor by making it harder to
convict him.
32 UNITED STATES V. LUCERO
Prot. Bureau v. Gordon, 819 F.3d 1179, 1196 (9th Cir. 2016)
(“While retroactivity of legislation and regulations is not per
se unlawful, we have a presumption against retroactivity that
generally requires that the legal effect of conduct . . .
ordinarily be assessed under the law that existed when the
conduct took place.”) (internal quotation marks and citations
omitted). 15 Nothing in the text of the regulation suggests
retroactive application. To the contrary, it states that the new
limits on what constitutes jurisdictional waters would
“replace[] the recodified pre-2015 regulations, upon its
effective date,” 85 Fed. Reg. at 22,260, and that
determinations made under prior versions of the regulation
would be preserved. Id. at 22,331–32.
Lucero’s authority for applying the 2020 Rule
retroactively is distinguishable because they relate to judicial
(or administrative adjudicatory) decisions changing the law,
rather than a newly enacted statute or regulation. Such
decisions apply retroactively because they are treated as “an
authoritative statement of what the statute meant before as
well as after the decision of the case giving rise to that
construction,” rather than as announcing a new law. Rivers
v. Roadway Express Inc., 511 U.S. 298, 312–13 (1994)
(emphasis added). Here, the 2020 rule is a new law, not a
15
At common law, the presumption against retroactivity did not
apply when a penal statute was repealed. In such cases, outstanding
prosecutions under the repealed statute could not continue. See
Landgraf, 511 U.S. at 271. But that common-law rule was abrogated by
statute. Id. (citing 1 U.S.C. § 109); see also United States v. Brown,
429 F.2d 566, 568 (5th Cir. 1970) (“Under [1 U.S.C. § 109], penalties
accruing while a statute was in force may be prosecuted after its repeal,
unless there is an express provision to the contrary in the repealing
statute.”).
UNITED STATES V. LUCERO 33
judicial interpretation of an existing law, so it does not apply
retroactively.
III.
Given the statutory definition of “pollutant,” Lucero’s
conviction must be reversed because the jury instructions did
not make clear that he had to know his discharge was “into
water.” We REVERSE and REMAND for a new trial.
BADE, Circuit Judge, dissenting in part:
I am pleased to join the majority’s opinion except as to
Sections II.A.1 and II.A.2, which conclude that the reference
to “waters of the United States” in the Clean Water Act’s
(CWA) prohibition on discharges is a purely jurisdictional
element and therefore not subject to the statute’s
“knowingly” mens rea requirement. 1 I do not believe that
the text of the discharge prohibition supports the majority’s
1
Section 1311(a) of Title 33 makes unlawful “the discharge of any
pollutant” without a license. To understand § 1311(a)’s application to
this case, we must read it in light of the CWA’s relevant definitions, in
particular § 1362(6) (defining “pollutant” as listed substances
“discharged into water”), § 1362(7) (defining “navigable waters” as “the
waters of the United States”), and § 1362(12) (defining “discharge of a
pollutant” and “discharge of pollutants,” in part, as “any addition of any
pollutant to navigable waters from any point source”). Section
1319(c)(2)(A), in turn, makes it a felony to “knowingly violate[] section
1311.” For simplicity’s sake, I will generally refer to the criminal
prohibition at issue here—a product of “knitting together the various
statutory provisions,” United States v. Pozsgai, 999 F.2d 719, 726 (3d
Cir. 1993)—as the “discharge prohibition.”
34 UNITED STATES V. LUCERO
reading, and I respectfully dissent from that part of the
opinion.
I.
“Stringing together” the relevant provisions, the
majority reads the discharge prohibition as “prohibit[ing]
any person from ‘knowingly’ engaging in the ‘addition of
any’ listed substance ‘discharged into water’ ‘to waters of
the United States’ from any point source.” Maj. Op. 10–11
(quoting 33 U.S.C. §§ 1319(c)(2)(A), 1311(a), 1362(6), (7),
(12)). The majority observes, however, that this reading
yields an “apparent redundancy.” Maj. Op. 11 (quoting
Pozsgai, 999 F.2d at 726). Specifically, “to waters of the
United States” seems to render the preceding prepositional
phrase, “into water,” superfluous. I agree that the various
statutory provisions, when strung together, result in this
apparent redundancy. I also agree with the majority’s
framing of the core question here: how “into water” and “to
waters of the United States” “co-exist” in the discharge
prohibition. Maj. Op. 11 (quoting Pozsgai, 999 F.2d at 726).
From there, however, we part ways. The majority
reconciles the apparent redundancy by interpreting the
substantive prohibition as covering the discharge of any
listed substance “into water,” and reading “waters of the
United States” as merely jurisdictional. In other words, the
majority concludes that discharging into “waters of the
United States” does not “describe the evil Congress [sought]
to prevent” in enacting the discharge prohibition, “but
instead simply ensure[s] that the Federal Government has the
constitutional authority to regulate the defendant’s conduct.”
Rehaif v. United States, 139 S. Ct. 2191, 2196 (2019)
(internal quotation marks and citation omitted).
UNITED STATES V. LUCERO 35
Because purely “jurisdictional elements normally have
nothing to do with the wrongfulness of the defendant’s
conduct, such elements are not subject to the presumption in
favor of scienter.” Id. (citation omitted). Therefore, the
majority concludes that the discharge prohibition’s
knowledge requirement does not apply to “waters of the
United States,” and thus a defendant need not know that the
water into which he discharged a listed substance fell within
the category of “waters of the United States” to be guilty of
a felony. 2 Maj. Op. 11–17.
Certainly, this approach gives distinct meaning to each
prepositional phrase: “into water” and “to the waters of the
United States.” But it does so at the cost of broadening the
discharge prohibition into an absurdity, while at the same
time failing to address situations where, as alleged here, a
defendant dumps waste on dry land that nonetheless falls
within the regulatory definition of “waters of the United
States.” Moreover, the chief justification for the majority’s
reading—the rule against surplusage—carries little weight
when applied to the broader statutory structure, which
applies multiple definitional provisions in the discharge
prohibition.
2
This case, however, differs from Rehaif, in which the Supreme
Court explained that the “into or affecting commerce” element of
18 U.S.C. § 922(g), a statute prohibiting illegal aliens from possessing
firearms, does not substantively add to the definition of the offense, but
“simply ensures that the Federal government has the constitutional
authority to regulate” the conduct in question. 139 S. Ct. at 2196(citation omitted). Whether an illegal alien’s possession of a firearm
involves interstate commerce has no bearing on the “evil” the statute
“seeks to prevent”—that is, illegal aliens possessing firearms. Id. But
here, the question of what water one discharges a “pollutant” into has
everything “to do with the wrongfulness”—or innocence—of that
conduct. See id.36 UNITED STATES V. LUCERO
II.
In the majority’s view, the discharge prohibition covers
the addition of any “pollutant” “into water,” while the
“waters of the United States” element merely demarcates
federal authority to enforce that prohibition. Maj. Op. 13–
14. But if the discharge prohibition bans any act of adding a
pollutant into water—regardless of what water—then it is
absurdly overbroad.
The CWA defines a “pollutant” as “dredged spoil, solid
waste, incinerator residue, sewage, garbage, sewage sludge,
munitions, chemical wastes, biological materials,
radioactive materials, heat, wrecked or discarded equipment,
rock, sand, cellar dirt and industrial, municipal, and
agricultural waste discharged into water.” 33 U.S.C.
§ 1362(6). If we simply apply this definition without also
considering the substantive limitation that a prohibited
discharge requires the addition of a pollutant to “the waters
of the United States,” id. § 1362(7), (12), then the discharge
prohibition would stretch far beyond any reasonable notion
of water pollution.
Under the majority’s interpretation, the discharge
prohibition could cover all sorts of innocent acts: heating a
tea kettle (“heat . . . discharged into water,” § 1362(6)),
using the restroom (“solid waste . . . discharged into water,”
id.), skipping a rock across a pond (“rock . . . discharged into
water,” id.), and even diving into a lake (“biological
materials . . . discharged into water,” id.). 3 Lumping such
3
The discharge prohibition only applies to additions of pollutants
“from any point source.” 33 U.S.C. § 1362(12). The majority interprets
the “point source” element to ensure that “the ‘water’ involved be an
equivalent to a body of water” for the discharge prohibition to apply.
UNITED STATES V. LUCERO 37
innocuous acts together as part of “the evil Congress
[sought] to prevent” in enacting the CWA, Rehaif, 139 S. Ct.
at 2196 (internal quotation marks and citation omitted),
would be absurd.
Of course, “the absurdity canon isn’t a license for us to
disregard statutory text where it conflicts with our policy
preferences.” In re Hokulani Square, Inc., 776 F.3d 1083,
1088 (9th Cir. 2015); see Pub. Citizen v. U.S. Dep’t of Just.,
491 U.S. 440, 470–71 (1989) (Kennedy, J., concurring in the
judgment) (“This exception remains a legitimate tool of the
Judiciary, however, only as long as the Court acts with self-
discipline by limiting the exception to situations where the
result of applying the plain language would be, in a genuine
sense, absurd, i.e., where it is quite impossible that Congress
could have intended the result, and where the alleged
absurdity is so clear as to be obvious to most anyone.”
(citation omitted)). As the Supreme Court has explained, a
court should reject a reading of a statute as absurd only when
it is “unreasonable to believe” that the legislature intended a
result that follows from that reading. Holy Trinity Church v.
United States, 143 U.S. 457, 459 (1892). Thus, for example,
Maj. Op. 19. But nothing in the definition of “point source” seems to
limit the meaning of “water” or foreclose such a broad application of the
discharge prohibition. See § 1362(14) (“The term ‘point source’ means
any discernible, confined and discrete conveyance, including but not
limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure,
container, rolling stock, concentrated animal feeding operation, or vessel
or other floating craft, from which pollutants are or may be
discharged.”); see also S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of
Indians, 541 U.S. 95, 105 (2004) (“[A] point source need not be the
original source of the pollutant; it need only convey the pollutant to
‘navigable waters,’ which are, in turn, defined as ‘the waters of the
United States.’ Tellingly, the examples of ‘point sources’ listed by the
Act include pipes, ditches, tunnels, and conduits, objects that do not
themselves generate pollutants but merely transport them.”).
38 UNITED STATES V. LUCERO
a law “that whoever drew blood in the streets should be
punished with the utmost severity did not extend to the
surgeon who opened the vein of a person that fell down in
the street in a fit.” Id. at 461 (internal quotation marks and
citation omitted). 4
The majority’s interpretation of the discharge
prohibition satisfies the high standard for absurdity. The
necessary implication of the majority’s reading—that
Congress’s limited authority under the Commerce Clause is
the only barrier to criminally prosecuting every American’s
daily use of indoor plumbing—“makes it unreasonable to
believe” that Congress intended “waters of the United
States” solely as a jurisdictional element that does not
substantively modify the discharge prohibition. Id. at 459.
The majority’s observation that Congress intended the CWA
to be “an all-encompassing program of water pollution
regulation,” Milwaukee v. Illinois, 451 U.S. 304, 318 (1981),
and to “protect water in the United States as expansively as
possible,” Maj. Op. 14, does not make its conclusion—that
4
The majority misses the point when it criticizes Holy Trinity’s
holding as a “triumph of supposed ‘legislative intent’ (a handy cover for
judicial intent) over the text of the law,” Maj. Op. 19 n.8 (quoting
Antonin Scalia, A Matter of Interpretation 18 (1997)). While Holy
Trinity may have relied on extratextual inferences about legislative intent
to justify its holding (that a statute banning “the importation and
migration of foreigners and aliens under contract to perform labor or
service of any kind in the United States” did not apply to an English
church rector, 143 U.S. at 511 (citation omitted)), I cite it here only for
its canonical description––often repeated in subsequent case law––of the
absurdity doctrine. See, e.g., K Mart Corp. v. Cartier, Inc., 486 U.S. 281,
324 n.2 (1988) (Scalia, J., concurring in part) (citing the example of the
law against drawing blood in the streets to illustrate the “venerable
principle that a law will not be interpreted to produce absurd results”).
UNITED STATES V. LUCERO 39
the CWA “broadly proscrib[es] the dumping of pollutants
‘into’ any ‘water,’” id. at 4—any less absurd.
The majority also attempts to justify its interpretation of
the discharge prohibition by observing that “[v]irtually all
water . . . eventually makes its way to navigable water.”
Maj. Op. 15 (quoting Cnty. of Maui v. Haw. Wildlife Fund,
140 S. Ct. 1462, 1470 (2020)). But the Supreme Court
recognized limits to this broad approach in Hawaii Wildlife
Fund when it concluded that “Congress did not intend the
[CWA’s] point source-permitting requirement to provide
EPA with such broad authority as” this sort of “focus on
traceability would allow.” 140 S. Ct. at 1471. It reasoned,
in part, that if the CWA’s regulatory reach were coextensive
with “the power of modern science” to trace water to a point
source, this “would require a permit in surprising, even
bizarre, circumstances, such as for pollutants carried to
navigable waters on a bird’s feathers, or, to mention more
mundane instances, the 100-year migration of pollutants
through 250 miles of groundwater to a river.” Id. at 1470–
71. Similarly, here, regulating “[v]irtually all water” use
based on the power of modern science to trace any water to
navigable water, however geographically or temporally
remote the connection, results in “bizarre” applications of
the CWA that render that approach untenable. See id.
We avoid these problems if we acknowledge that the
statute’s reference to “waters of the United States” does not
merely delineate the government’s jurisdiction to enforce the
discharge prohibition, but that it also plays a role in defining
the prohibition itself. Accordingly, the discharge prohibition
does not universally proscribe all discharges “into water,”
but rather, applies only to such discharges “to waters of the
United States.” 33 U.S.C. § 1362(6), (7).
40 UNITED STATES V. LUCERO
Congress has delegated responsibility for determining
the specific contours of “waters of the United States” to the
Environmental Protection Agency and the Army Corps of
Engineers, see Rapanos v. United States, 547 U.S. 715, 722–
29 (2006) (plurality opinion), and those agencies’ definition
of the term, set forth at 33 C.F.R. § 328.3, plainly does more
than merely identify the outer bounds of federal authority
under the Commerce Clause. It distinguishes between
harmful and innocent conduct and thus avoids prohibiting
many activities that would otherwise fall within a blanket
prohibition on discharging any pollutant “into water.” See,
e.g., 33 C.F.R. § 328.3(a) (2014) (defining “waters of the
United States” as territorial seas and waters used or
susceptible to use in interstate commerce, including waters
subject to tides; tributaries; lakes, ponds, and impoundments
of jurisdictional waters; and adjacent wetlands); see also id.§ 328.3(b) (categorically excluding certain waters, including
“[p]rior converted cropland” and “[w]aste treatment
systems”). 5 Thus, for example, the definition of “waters of
the United States” makes clear that the discharge prohibition
is not violated by heating a tea kettle or using the restroom
because the water in these examples does not fall within, or
is excluded from, the categories of water that the regulation
identifies. See id. § 328.3(a). 6
5
The current version of the regulation also includes categorical
exceptions, for example, for “[g]roundwater, including groundwater
drained through subsurface drainage systems,” “[p]rior converted
cropland,” and “[w]aste treatment systems.” 33 C.F.R. § 328.3(b)
(2020).
6
As the majority observes, Maj. Op. 17 n.7, the agencies have
referred to “waters of the United States” as “jurisdictional waters.” See
33 C.F.R. § 328.3(a) (2020); Clean Water Rule: Definition of “Waters
of the United States”, 80 Fed. Reg. 37054-01, 37057 (June 29, 2015).
UNITED STATES V. LUCERO 41
III.
Moreover, the majority’s interpretation of the discharge
prohibition as criminalizing all discharges “into water” is not
only absurdly overbroad, but also underinclusive because it
fails to address situations in which “dry land might be treated
as ‘navigable waters’ under the Clean Water Act.” Maj.
Op. 4. Neither the statute nor any relevant regulation defines
the terms “into water” or “water.” Instead, the statute relies
on the term “waters of the United States,” and the regulatory
definitions of that term, to define its reach. See Nat’l Ass’n
of Mfrs. v. Dep’t of Def., 138 S. Ct. 617, 625 (2018) (“The
statutory term ‘waters of the United States’ delineates the
geographic reach of many of the Act’s substantive
provisions . . . .” (citations omitted)); see also Rapanos,
547 U.S. at 722–29 (summarizing the evolving
interpretations of “waters of the United States” that have
allowed “the immense expansion of federal regulation of
land use that has occurred under the Clean Water Act”).
If the term “waters of the United States” is solely
jurisdictional and not a substantive element of a violation of
§ 1311(a), then we would be left to interpret the substantive
discharge prohibition based on the plain meaning of “water,”
which would certainly not cover discharges into arroyos,
areas adjacent to water, or other dry areas. See Water,
But no regulation states that the category is solely jurisdictional.
Moreover, it appears that the agencies are using the term “jurisdictional”
not in the sense of Congress’s constitutional authority to legislate, see
Torres, 136 S. Ct. at 1624, but rather to describe their own “statutory
authority (that is, [their] jurisdiction),” City of Arlington v. F.C.C.,
569 U.S. 290, 296–97 (2013), that Congress has delegated them to
enforce the CWA. See 33 C.F.R. § 328.1 (“This section defines the term
‘waters of the United States’ as it applies to the jurisdictional limits of
the authority of the Corps of Engineers under the Clean Water Act.”).
42 UNITED STATES V. LUCERO
Oxford English Dictionary (3d ed. 2015) (“The substance
(most commonly encountered as a liquid) which is the
principal constituent of seas, lakes, and rivers, and which
falls as rain and other forms of precipitation.”). If “waters
of the United States” were a purely jurisdictional element,
whose “purpose” was “to limit the reach of [the] statute,”
United States v. Alderman, 565 F.3d 641, 647 (9th Cir. 2009)
(emphasis added) (citation omitted), it could not expand the
CWA’s reach to areas the substantive prohibition fails to
cover. Thus, “waters of the United States” substantively
defines the discharge prohibition not only by ensuring it does
not reach harmless, everyday conduct involving water; it
also ensures the CWA does reach cases of bona fide water
pollution when a polluter does not dump directly into water. 7
In responding to this point, the majority in fact confirms
it. While it correctly observes that the Supreme Court has
recognized that it would be “simplistic” to limit the CWA’s
reach to “hydrographic features more conventionally
identifiable as ‘waters,’” United States v. Riverside Bayview
Homes, Inc., 474 U.S. 121, 131–32 (1985), neither the Court
nor the agencies has ever relied on “into water” to extend the
CWA’s reach beyond conventional water. When the
Supreme Court construed the term “waters” (not “water”) in
Riverside Bayview Homes, it did so only in analyzing
whether that word, as it appeared in “waters of the United
States,” limited the government’s power to regulate
discharges. Id. at 132. Given the virtually exclusive role of
7
The majority suggests that “[t]he government has the greatest
interest in ensuring the ability to prosecute cases under the CWA and it
does not share [this] concern.” Maj. Op. 21 n.10. But it is not clear how
the government’s unstated views of its own interests could bear on our
task here: to determine from the language of the statute how Congress
intended “waters of the United States” to function in the discharge
prohibition.
UNITED STATES V. LUCERO 43
the “waters of the United States” element as the CWA’s
vehicle for determining the reach of the discharge
prohibition, it is clear that it substantively defines the
prohibition.
IV.
Nonetheless, if the phrase “to waters of the United
States” plays a role in defining the substantive prohibition,
then the phrase “into water” appears to be redundant and
unnecessary—at least in the discharge prohibition. And this
redundancy is in tension with the rule against surplusage,
which states that “[i]f possible, every word and every
provision is to be given effect” in our construction of a
statute. See A. Scalia & B. Garner, Reading Law: The
Interpretation of Legal Texts 174 (2012). But the
“preference for avoiding surplusage constructions is not
absolute.” Lamie v. U.S. Tr., 540 U.S. 526, 536 (2004)
(citation omitted).
Here, the rule against surplusage carries little weight
because, even under Lucero’s reading, “into water” is not
entirely superfluous. Granted, it functions superfluously in
this particular application, where a single substantive
provision, 33 U.S.C. § 1311(a), incorporates overlapping
definitional provisions that include similar prepositional
phrases. But although the phrase “into water” in the
definition of “pollutant,” id. § 1362(6), is redundant when
combined with the phrase “to waters of the United States” in
the definition of “discharge of a pollutant,” id. § 1362(7),
(12), it performs a non-redundant role in other statutory
provisions that reference “pollutant” but not “discharge.”
See 33 U.S.C. § 1252(c)(2)(B) (referring to the “collection,
storage, treatment, and elimination of pollutants”);
33 U.S.C. § 1258(a) (discussing “removal of pollutants and
prevention of any polluting matter”).
44 UNITED STATES V. LUCERO
Unlike situations in which a court interprets a single
statutory provision as containing a redundancy, thus actually
“render[ing]” some of the provision’s language “a nullity,”
In re Cervantes, 219 F.3d 955, 961 (9th Cir. 2000) (citations
omitted), the rule against surplusage is not dispositive here
because Lucero’s proposed reading does not truly render
meaningless any words that Congress enacted. Instead, it
merely results in an “as-applied” redundancy. While this
redundancy stands in some tension with the rule against
surplusage, it is fundamentally consistent with that rule’s
teaching that “a statute ought, upon the whole, to be so
construed that, if it can be prevented, no clause is rendered
superfluous, void, or insignificant.” Young v. United Parcel
Serv., Inc., 135 S. Ct. 1338, 1352 (2015) (emphasis added)
(internal quotation marks and citation omitted).
Indeed, the rule against surplusage “cannot always be
dispositive because . . . the underlying proposition is not
invariably true. Sometimes drafters do repeat themselves
and do include words that add nothing of substance . . . .”
Scalia & Garner at 176. Such repetition is particularly
understandable when two definitions, in this case “pollutant”
and “discharge,” apply to a range of substantive provisions
and thus lead to redundancies when both are applied in a
single provision.
V.
The majority gives short shrift to these considerations
when it rejects Lucero’s reading of the discharge prohibition.
It proclaims that “we have no roving license to disregard
statutory text to make our jobs easier in interpreting it.” Maj.
Op. 12 (quotation marks and citation omitted). While this
statement is correct, it is misplaced here. Lucero has not
asked us to disregard the statute’s language in favor of some
extratextual consideration. See Scalia & Garner at 235
UNITED STATES V. LUCERO 45
(“What the rule of absurdity seeks to do is what all rules of
interpretation seek to do: make sense of the text.”). Rather,
he asks us to adopt one of two readings of a convoluted
statute whose language forces us to choose either an absurd
implication or an incidental redundancy.
To be sure, I do not easily conclude that any words in a
statute are superfluous to its meaning. But under the
circumstances here, which require “knitting together the
various statutory provisions,” Pozsgai, 999 F.2d at 726, I
agree with Lucero that the statute’s text favors such a
reading. See Amoco Prod. Co. v. Watson, 410 F.3d 722, 734
(D.C. Cir. 2005) (“No canon of construction justifies
construing the actual statutory language beyond what the
terms can reasonably bear.” (citation omitted)). The
majority, seeking in good faith to apply the statute’s
language, has reached a different conclusion. But it is
mistaken when it suggests that the competing interpretation
is simply the result of “disregard[ing] statutory text,” Maj.
Op. at 12, or an attempt to “improve upon” the statute
Congress drafted, id. at 12 (quoting Pavelic & LeFlore v.
Marvel Ent. Grp., Div. of Cadence Indus. Corp., 493 U.S.
120, 126 (1989)).
The majority also misunderstands my approach, which it
characterizes as “myopically focus[ed] on a single . . .
phrase” to the exclusion of its broader context in the CWA.
Maj. Op. 18. To the contrary, I read “waters of the United
States” as substantively defining the discharge prohibition
precisely because of its role in the broader statutory context.
To summarize, I conclude that 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
46 UNITED STATES V. LUCERO
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 phrase “to waters of the United States”
functions partly as a jurisdictional element, tying “the
substantive offense . . . to one of Congress’s constitutional
powers . . . , thus spelling out the warrant for Congress to
legislate,” Torres v. Lynch, 136 S. Ct. 1619, 1624 (2016),
this is not the only role it plays. It is also the only element
in the discharge prohibition that allows us to distinguish
between entirely innocent conduct and criminal conduct.
Therefore, it is subject to “the presumption . . . that
‘Congress intends to require a defendant to possess a
culpable mental state regarding each of the statutory
elements that criminalize otherwise innocent conduct.’”
United States v. Collazo, 982 F.3d 596, 611 (9th Cir. 2020)
(quoting Rehaif, 139 S. Ct. at 2195).
VI.
For these reasons, I respectfully dissent from the
majority’s holding that the discharge prohibition’s mens rea
requirement does not apply to the “waters of the United
States” element. The majority concludes that the
government must “prove only that a defendant knew he
discharged a substance ‘into water.’” Maj. Op. 17. In
contrast, I would vacate the conviction and remand for
further proceedings because the jury instructions did not
require the jury to find that Lucero knowingly discharged a
pollutant into “waters of the United States,” as defined by
the CWA and the relevant regulations.