Most environmental regulations carry
a two-pronged enforcement mechanism. The enforcing
agency often has discretion to pursue a violation
as a civil/administrative action or a criminal action.
In most cases, whether one faces civil fines or a
potentially long jail term depends upon an evaluation
of whether the unlucky entity subject to agency scrutiny
meant to engage in a prohibited activity or simply
made a mistake. As John Hubenka recently learned in
the great state of Wyoming, a criminal conviction
will often reward a sin twice visited.
The twisted course of events that
led to Hubenka’s conviction on three counts
of knowingly discharging pollutants into the Wind
River began prior to 1994. The Wind River originates
in Wyoming’s Wind River Range and flows through
the Wind River Indian Reservation. Hubenka worked
as a manager for the LeClair Irrigation District (LID),
which maintained a diversion gate on the river that
allowed water to flow into an irrigation canal. The
Wind River itself flowed into multiple channels, with
the main flow coursing through what was known as the
north channel, which was close to the LID irrigation
canal. Prior to 1994, LID and Hubenka worked with
the Army Corps of Engineers (Corps) to obtain permits
to dredge and stabilize the river bank to prevent
it from eroding and threatening the irrigation canal.
However, in 1994, under Hubenka’s
supervision and without Corps permits or authorization,
LID constructed a dike using various materials including
river cobble. The Corps learned of the activities
and sent LID, via Hubenka, a Notice of Violation.
The Notice told LID and Hubenka that their actions
constituted unauthorized discharges and told them
to stop adding materials to the dike and to begin
removing the debris from the river. Once again, the
Corps worked with LID and Hubenka to get the proper
permits in place for the use of acceptable stabilization
techniques and materials.
In late 1999 or early 2000, nature
intervened to alter the river’s primary course,
moving it further from the LID irrigation canal. In
March 2000, Hubenka initiated the construction of
a series of three dikes that were constructed in large
part by pushing river cobble into the main channel,
one of which was just downstream of the LID irrigation
canal. The second and third were placed in positions
to prevent the river from returning to the north channel.
In early 2004, Hubenka was charged
with three counts involving the knowing discharge
of pollutants into the Wind River. He subsequently
was found guilty and the Tenth Circuit Court of Appeals
sustained his conviction on February 21, 2006. US
v. Hubenka (10th Cir. 2006) 438 F.3d 1026.
Hubenka gambled his freedom on a
technical reading of the Clean Water Act (CWA). The
CWA prohibits acts of pollution in waters of the United
States. Since the Act itself does not provide any
more detailed statement of what constitutes waters
of the United States, the Corps established regulations
stating that the term includes all navigable waters.
The regulations later were expanded to include tributaries
of navigable waters. Since the Wind River was a tributary,
Hubenka challenged the government’s case, claiming
that the CWA did not apply to the Wind River since
the expansion of the coverage to tributaries was beyond
the scope of the Corps’ authority.
The appellate court rejected the
claim and sustained the convictions, recognizing that
the CWA was meant to broadly define waters of the
United States and the Corps was within its authority
to expand the concept to tributaries since pollution
injected into a tributary had the potential to reach
beyond the tributary and degrade the quality of the
adjacent navigable water.
There are several key lessons to
be learned from the unfortunate experience that befell