Negligent Violations of the Clean Water Act: Is Mens Rea Reduced?

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Criminal prosecutions for violations of the Clean Water Act (CWA), 33 U.S.C. §§1251-1387, ELR Stat. FWPCA §§101-607, are on the rise.1 No longer are harsh penalties reserved for 'knowing' violations. Today, even the alleged polluter who should have known his actions violated the CWA may face imprisonment. Section 1319(c)(1) of the CWA provides, in part, that any 'person'2 who commit negligent violation may be punished by up to a year of imprisonment.3 Although t term 'negligence' is not defined in the CWA, the Ninth Circuit in the recent decision of United States v. Hanousek4 announced that ordinary negligence is the proper standard to measure what constitutes violations of §1319(c)(1).

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