Recently, numerous federal law enforcement agencies made it known that they intend to increase their enforcement of environmental offenses in U.S. territories. Already, they have secured indictments for alleged violations of the Federal Water Pollution Control Act, also known as the U.S. Clean Water Act. Convictions for these and similar offenses can carry years in prison as well as other penalties, including injunctions and court orders to clean up the violation. Worse, given the vague nature of some of these laws and the low level of intent required for a violation, it can be difficult to comply with them and avoid a conviction.
The environmental litigation and criminal defense team at The Criminal Defense Firm is closely monitoring the situation. Numerous individuals and businesses could be at risk of criminal prosecution or civil judgments for their conduct if they have not taken the extensive precautions necessary in their corporate environmental compliance protocols.
Justice Department Announces Task Force for Environmental Crimes in Puerto Rico and Virgin Islands
On May 11, 2023, the U.S. Department of Justice (DOJ) issued a press release announcing the creation of a new, inter-agency task force to crack down on environmental crimes and associated fraud in the U.S. territories of Puerto Rico and the U.S. Virgin Islands. The task force will draw together personnel from a wide variety of federal law enforcement and investigative agencies, including the:
- Environmental Protection Agency (EPA)
- Internal Revenue Service (IRS)
- U.S. Fish and Wildlife Service
- U.S. Coast Guard
- Federal Bureau of Investigation (FBI)
- Food and Drug Administration (FDA)
- Army Corps of Engineers
- Department of Homeland Security
- Office of Inspector General for the:
- Department of Agriculture
- Department of Commerce
- Department of Transportation (DOT)
- Housing and Urban Development (HUD)
By creating the task force, the DOJ aims to facilitate better communication between the agencies in Puerto Rico and the nearby Virgin Islands. The increased efficiency and the sharing of resources is meant to further the DOJ’s impetus to “advance environmental justice in underserved communities that have been historically marginalized and overburdened, including low-income communities, communities of color and Tribal and Indigenous communities.”
Announcement Comes on the Heels of Indictments
The press release announcing the joint task force to prosecute environmental crimes came on the very same day as another DOJ press release announcing criminal indictments against two individuals for violating the Clean Water Act and other environmental laws in Puerto Rico.
The indictments allege that, over the course of nearly three years, the two men knowingly dumped dirt and other fill material from their excavation and earth moving equipment into the wetlands of the Jobos Bay National Estuarine Research Reserve (JBNERR) in Salinas, Puerto Rico. If proven, this would be a violation of the Clean Water Act. The indictment also accuses the two men of building structures on the water without proper authorization. If proven, this would constitute a violation of the Rivers and Harbors Act.
According to the press release, numerous federal agencies teamed up for the prosecution, including the:
- EPA’s Criminal Investigation Division
- U.S. Department of the Army Criminal Investigation Division (Army-CID)
- NOAA’s Office of Law Enforcement (NOAA-OLE)
- U.S. Fish and Wildlife Service Office of Law Enforcement (FW-OLE)
- Department of Commerce Office of Inspector General (DOC-OIG)
If convicted, both defendants could face up to four years in prison, plus fines and injunctive relief.
Poor Communication About Protected Waterways and Wetlands Can Lead to Violations
Importantly, federal environmental laws protect vague concepts like “waterways,” “navigable rivers,” and “wetlands.” However, not all such areas are legally protected. Generally, a federal agency has to name an area as protected under the law. How well that action is communicated to the public is extremely important.
For example, if there is not adequate signage around a protected area, it is extremely unlikely that people or local businesses will be aware that they could violate federal law by not taking precautions there. It is also completely unreasonable to expect the public to actively research and find out what areas around them are protected by federal law and which ones are not.
Nevertheless, federal law forbids the knowing or negligent direct discharge of pollutants into water or wetlands without a permit (33 U.S.C. § 1319(c)).
Intent is Not Required
Worse, prosecutors do not need to prove that you intentionally polluted waterways in order to secure a criminal conviction. Negligence is enough, though the penalties for a violation increase if it was done knowingly or with knowledge that the violation would put others in imminent danger.
While the penalties get worse for knowing violations, those for negligent conduct are far from trivial. You could face up to a year in prison and a fine of between $2,500 and $25,000 per day of the violation, even if it was just a first-time offense.
An Extremely Broad Definition of “Pollutant”
Savvy readers may note that we said that the Clean Water Act forbids the knowing or negligent discharge of “pollutants” into protected waterways and wetlands, but that the two men who were indicted in Puerto Rico had dumped dirt and other fill material. Surely, sand, rocks, and some dirt would not be a “pollutant.”
However, Section 502(6) of the Clean Water Act (33 U.S.C. § 1362(6)) defines the term “pollutant” in a very extensive way. It includes any of the following substances, when they are discharged into water:
- Solid waste
- Incinerator residue
- Sewage sludge
- Chemical wastes
- Biological materials
- Radioactive materials
- Wrecked or discarded equipment
- Cellar dirt
- Industrial, municipal, or agricultural waste
This means that nearly anything that is discharged into a protected area could violate the Clean Water Act, from toxic waste all the way down to a candy wrapper.
Environmental Defense Lawyers at The Criminal Defense Firm
The broad prohibitions in federal environmental laws like the Clean Water Act, the vague definitions of what constitutes a protected wetland or waterway, and the lack of any intent for there to be criminal liability all contribute to a very fraught legal situation. When the DOJ announces that it and other agencies intend to crack down on violations, the potential for innocent people and businesses to get accused of serious wrongdoing and convicted for conduct that they did not know was unlawful becomes very real.
If you or your company has been accused of an environmental crime, call the environmental and criminal defense lawyers at The Criminal Defense Firm at (866) 603-4540 or contact them online for legal guidance and advocacy.
Brian Kuester offers his extensive experience to counsel companies and individuals under civil or criminal government investigation. When resolution requires litigation, clients choose Mr. Kuester’s proven court and litigation experience.