WSJ logo
Forbes logo
Fox News logo
CNN logo
Bloomberg logo
Los Angeles Times logo
Washington Post logo
The Epoch Times logo
Telemundo logo
New York Times
NY Post logo
NBC logo
Daily Beast logo
USA Today logo
Miami Herald logo
CNBC logo
Dallas News logo

EPA and Clean Water Act

Carlton S. Patton
Carlton S. Patton
EPA and Clean Water Act Team Lead
Former EPA CID Special Agent
Nick Oberheiden
Attorney Nick Oberheiden
EPA and Clean Water Act Team Lead
envelope iconContact Nick

The U.S. Environmental Protection Agency (EPA), in tandem with other federal and state law enforcement agencies, have vowed to crack down on environmental crimes and the Federal Water Pollution Control Act, also known as the U.S. Clean Water Act, in particular. While everyone wants clean air and water and understands the benefits of decreasing pollution, these environmental protection laws, as well as the regulations associated with them, are extremely broad and can lead to civil and potentially even criminal liability for conduct that is not even intentional.

The senior attorneys at the national law firm Oberheiden P.C. include environmental litigation defense lawyers and corporate compliance professionals that can help companies across the country take the steps necessary to avoid civil allegations and criminal charges or to combat those that have already been filed against the company.

The Clean Water Act

The Clean Water Act (33 U.S.C. § 1251 et seq.) is the primary federal law that forbids polluting the waterways in America. While originally enacted in 1948 in the form of the Federal Water Pollution Control Act, it was rewritten in 1972 and amended again in 1977 and 1987.

Broadly speaking, the Clean Water Act forbids the discharge of “pollutants” into waterways that have a “significant nexus” to “navigable waters.”

Each of these vague notions have been interpreted in extremely broad ways by the EPA through the regulations that the agency has promulgated in order to enforce the law.

Nearly Anything Can Be a Pollutant

The definition of a “pollutant” comes from the Clean Water Act statute, itself. 33 U.S.C. § 1362(6), or Section 502(6) of the Clean Water Act, states that “pollutants” include any of the following when they are discharged into water:

  • 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
  • Industrial, municipal, or agricultural waste

While some of these substances, like agricultural waste, sewage, and radioactive chemicals, are clearly and obviously pollutants, others, like rock, sand, and heat, are not. In theory, this can mean that the following people are violating the Clean Water Act:

  • An excavating company dumping a non-pollutant, but hot, substance into a stream
  • A homeowner shoveling sand into an adjoining wetland
  • A hiker tossing a candy wrapper into a river

Because of its extremely broad notion of a “pollutant,” individuals and companies often struggle to comply with the mandates of the Clean Water Act, subjecting them to serious allegations that, even if resolved at little cost to the company, can still be extremely damaging to the business’ brand and reputation.

Protected Waterways

In passing the Clean Water Act, Congress intended to protect “navigable waters” (33 U.S.C. § 1362(7)). However, regulations promulgated by the EPA have extended the agency’s jurisdiction to include bodies of water that have a “significant nexus” to those navigable waters.

The exact extent of jurisdictional waters that fall under the Clean Water Act is extremely difficult to determine, as whether an area’s connection to a navigable waterway is significant enough – or even if it has a nexus to a navigable waterway at all – is frequently up for scientific debate. Already, there have been multiple cases to come before the Supreme Court of the United States to resolve the issue, and the EPA’s own regulations have redrawn the line multiple times. This makes it extremely difficult to comply with the law and leaves companies open to liability in spite of their best intentions to abide by it.

Put our highly experienced team on your side

Dr. Nick Oberheiden
Dr. Nick Oberheiden

Founder

Attorney-at-Law

Lynette S. Byrd
Lynette S. Byrd

Former DOJ Trial Attorney

Partner

Brian J. Kuester
Brian J. Kuester

Former U.S. Attorney

Amanda Marshall
Amanda Marshall

Former U.S. Attorney

Local Counsel

Joe Brown
Joe Brown

Former U.S. Attorney

Local Counsel

John W. Sellers
John W. Sellers

Former Senior DOJ Trial Attorney

Linda Julin McNamara
Linda Julin McNamara

Federal Appeals Attorney

Aaron L. Wiley
Aaron L. Wiley

Former DOJ attorney

Local Counsel

Roger Bach
Roger Bach

Former Special Agent (DOJ)

Chris Quick
Chris J. Quick

Former Special Agent (FBI & IRS-CI)

Michael S. Koslow
Michael S. Koslow

Former Supervisory Special Agent (DOD-OIG)

Ray Yuen
Ray Yuen

Former Supervisory Special Agent (FBI)

Intentional Conduct Not Required for Criminal Charges

As if the vague concept of protected waterways and the extensively broad definition of “pollutants” were not bad enough, the EPA can pursue criminal charges for conduct that was not even intentional. This lack of a required mens rea, or culpable mental state, makes the Clean Water Act an outlier among other criminal laws, which generally require at least reckless conduct.

The likely reason for this is simple: The EPA wanted to make sure that people and companies were held accountable when pollutants made their way into waterways without their knowledge, thereby pressuring them to take the appropriate steps necessary to ensure that the discharge would not happen. While using the law to deter pollution may be wise, doing it with criminal sanctions is draconian and can subject people who strive to comply with the law to serious criminal penalties.

Steep Penalties of a Conviction

Convictions for criminal violations of the Clean Water Act are serious. Individuals and companies can face huge monetary penalties and the costs of cleaning up the pollutants that they discharged into protected waterways. Non-corporate defendants can also face long prison sentences.

Under 33 U.S.C. § 1319(c), the severity of the sanctions depend on whether the conduct was negligent or not, as well as whether there are prior Clean Water Act convictions on the defendant’s criminal history.

Clean Water Act violations that were negligent face the lightest penalties, though even those are nothing to scoff at. First-time convictions carry up to a year in prison and fines of between $2,500 and $25,000 for each day that the violation was ongoing. Subsequent convictions see the prison term increase to a maximum of two years and the fine go up to $50,000 per day.

Knowing violations carry up to three years in prison and daily fines of $5,000 to $50,000 for first-time offenses, while subsequent convictions carry up to six years in prison and fines of up to $100,000 per day that the violation was ongoing.

If the violation knowingly endangered others, the penalties increase dramatically. First-time violations carry up to 15 years in prison and $250,000 in fines, while subsequent convictions carry up to 30 years in prison and $500,000 in fines.

In addition to the fines and prison time, defendants can face a court order to not only stop the pollutant discharge but also to clean up the affected waterways. These cleanup costs can easily eclipse the already high amounts imposed by the court with the fine.

Finally, violating the Clean Water Act frequently comes with some exceptionally bad publicity. The tarnished reputation can cost a corporate violator many more thousands of dollars down the road in lost revenue.

3 Questions that Oberheiden P.C. Attorneys Frequently Get Asked About the EPA’s Enforcement of the Clean Water Act

How Strongly Does the EPA Enforce the Clean Water Act?

 

The EPA is among the most politicized agencies in the entire federal government, with business interests constantly trying to downsize and gut it, all while blaming the EPA’s regulations as interfering with business practices and costing thousands of jobs across the country. As a result, the power of the EPA waxes and wanes with the political tides and that affects how well the agency can enforce the laws it is tasked with enforcing, including the Clean Water Act.

However, recent developments show that the EPA and other federal law enforcement agencies are getting serious about environmental laws, once again. A press release from the U.S. Department of Justice (DOJ) announced the creation of an inter-agency task force to combine resources in Puerto Rico and the U.S. Virgin Islands to better enforce environmental laws in those U.S. territories. To back up these moves, another press release on the same day announced the criminal indictment of two individuals in Puerto Rico who allegedly dumped dirt and rocks into a protected estuary.

What Sets Oberheiden P.C.’s Environmental Defense Practice Apart from Others?

 

Oberheiden P.C. does several things differently from other defense firms. We think that each one makes us better suited for our clients and help us provide exceptional legal services.

First, we only employ senior-level attorneys with numerous years of experience in the field of criminal law. Many of them were prosecutors or investigators within some of the same federal agencies that pursue Clean Water Act allegations, including the DOJ and the EPA. This does not just mean that you get represented by an experienced attorney with a nuanced and often insider’s understanding of these sorts of cases. It also means that you will only deal with the senior lawyer on your case. We do not have junior associates or paralegals at our firm. All of the work that gets done on your case is performed by an experienced attorney who knows what it takes to win it.

Second, we are a national law firm that represents clients across the country. Multistate or even international corporations know that, if they have problems in a wide range of areas, we can help them in each one.

Third, we focus our defense practice in federal court rather than in state court. This means we are used to facing down the power of the federal government. Other firms tend to spend more time defending cases in state court, where the opposition is the state attorney general’s office or the local district attorney. They are often overwhelmed by the demands of a federal case.

Why Don’t You Call Yourselves the Best Environmental Defense Lawyers?

 

That is something that we prefer to let our work and the testimonials of our prior clients say for us.


Environmental and Clean Water Act Defense Attorneys at Oberheiden P.C.

Clean water is essential. However, imposing such harsh penalties on unwitting violators and even people and companies that are doing all that they can to comply with the law can be unreasonable.

If you or your company are facing EPA investigations and potentially even criminal charges for a violation of the Clean Water Act, you need experienced legal representation. The environmental crime defense attorneys at the national law firm of Oberheiden P.C. can provide the legal guidance and advocacy that you need to protect yourself. Contact us online or call our law office at (888) 680-1745.

WordPress Lightbox