Hot Topics in Wetlands Law

The Clean Water Act turns 30

The jurisdiction of the Army Corps of Engineers over wetlands has been under fire over the last decade, leading to judicial decisions and agency responses that have left more questions than answers over what waters the agency has regulatory authority.1 This situation clouds the implementation of § 404 of the Clean Water Act (CWA), the section prohibiting the discharge of dredged or fill material into waters of the United States without a permit.2

Some legal analysts consider the CWA to fall within the scope of the“public welfare doctrine.” Under the doctrine, certain regulatory crimes require no showing of the traditional mens rea, or “guilty mind,” as a predicate to criminal liability. The doctrine has been used to relax intent requirements in criminal statutes when the public welfare is at stake and is predicated upon the fact that the defendant had notice that the dangerous activity is regulated. A majority of courts place the criminal provisions of the CWA within the public welfare doctrine. In theory, therefore, prosecutors need not prove that a defendant acted with the requisite intent with respect to each element of the underlying statutory offense in order to convict.