482 F.

3d 658

UNITED STATES of America, Plaintiff-Appellee,

v.
D.J. COOPER, Defendant-Appellant.
No. 05-4956.

United States Court of Appeals, Fourth Circuit.

Argued: February 2, 2007.
Decided: March 28, 2007.

ARGUED: Wayne D. Inge, Roanoke, Virginia, for Appellant. Michael

Ray Fisher, Environmental Protection Agency, Washington, D.C., for
Appellee. ON BRIEF: John L. Brownlee, United States Attorney, Jennie
L.M. Waering, Assistant United States Attorney, Office of the United
States Attorney, Roanoke, Virginia, for Appellee.
Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the opinion, in
which Judge MOTZ and Judge TRAXLER joined.
OPINION
WILKINSON, Circuit Judge:

D.J. Cooper was convicted by a jury on nine counts of knowingly discharging a

pollutant from a point source into waters of the United States, in violation of
the Federal Water Pollution Control Act Amendments of 1972, as amended 33
U.S.C. 1251 et seq. (2000), commonly known as the Clean Water Act
("CWA" or "the Act"). He claims that the district court should have granted an
acquittal for lack of sufficient evidence, in part because the government failed
to prove Cooper knew that he was discharging pollutants into waters of the
United States. Because the district court did not err, and because the CWA does
not require the government to establish Cooper's knowledge as to the
jurisdictional status of the waters he affected, we affirm the judgment of the
district court.

I.
2

The CWA prohibits the knowing discharge of a pollutant from a point source to
waters of the United States without a permit. See 33 U.S.C. 1311(a), 1319(c)
(2)(A), 1362(7), 1362(12). The Act defines "discharge of a pollutant" as the
"addition of any pollutant to navigable waters from any point source." Id.
1362(12). The term "pollutant" includes "sewage ... sewage sludge ... [and]
biological materials ... discharged into water." Id. 1362(6). The term "point
source" denotes a "confined and discrete conveyance," including any pipe
"from which pollutants are or may be discharged." Id. 1362(14). "Navigable
waters" are defined as "waters of the United States," id. 1362(7), which are
defined by regulation to include, among other things, "[a]ll interstate waters"
and the "[t]ributaries of [such] waters," 40 C.F.R 122.2 (2006).

Defendant Cooper has been operating a sewage lagoon at his trailer park in
Bedford County, Virginia, since 1967. In recent times the lagoon has served as
the only method of human waste disposal for twenty-two of the trailers in the
park. The lagoon treats sewage according to the following process: Solid
materials settle to the bottom of the lagoon, while the fluid level rises until it
reaches an overflow structure in the middle of the lagoon, from which it flows
through a pipe into a chlorine contact tank. In the tank, an electric pump
dispenses a solution of water and granular chlorine, which mixes with the
sewage. The chlorinated fluid then flows through a discharge pipe, down a
channel of a few feet, and thence into a small creek.

The creek into which the treated sewage flows is a tributary of Sandy Creek,
which is in turn a tributary of the Roanoke River. The Roanoke River flows
from the foothills of the Appalachian Mountains in Virginia, through North
Carolina, and into the Albemarle Sound. There is no dispute that, as a tributary
of an interstate water, the small creek into which the lagoon discharges
constitutes a water of the United States. See id.

The CWA provides that permits regulating discharge of pollutants other than
dredge and fill material are issued under the National Pollutant Discharge
Elimination System program ("NPDES"). See 33 U.S.C. 1342(a), 1344. It
also provides that states may, upon EPA approval, choose to administer their
own permit program in accordance with the CWA. See id. 1342(b). The
Commonwealth of Virginia maintains an EPA-approved Virginia Pollution
Discharge Elimination System ("VPDES") program, pursuant to which the
Virginia Department of Environmental Quality ("DEQ") issues permits that
suffice for both state and federal discharge authorization. See Va.Code Ann.
62.1-44.15(5a) (2006). DEQ regulated discharges from the lagoon through a

series of permits to Cooper, the last of which issued in 1997 and remained in
effect until March 7, 2002.
6

Cooper's permit regulated discharge from the lagoon in a number of ways. It

fixed "effluent limitations" or permitted pollutant levels for various pollutants
associated with sewage, and it set the degree to which the discharge was
allowed to decrease oxygen levels in the creek. It required chlorination of the
sewage in order to kill pathogens, as well as dechlorination, for which purpose
DEQ instructed Cooper to install dechlorination facilities. The permit also
required Cooper to sample the pollutant levels of the discharge and to report the
results each month to DEQ.

Between 1993 and 1998, DEQ recorded over 300 violations of the permit,
including excessive levels of Kjeldahl nitrogen, chlorine, and suspended solids
and impermissibly low levels of oxygen in the creek. In response, DEQ took
enforcement action which culminated in a 1998 Consent Order. Under the
Consent Order, Cooper agreed to pay a $5,000 fine for past violations. Given
that the sewage lagoon was incapable of meeting CWA standards in its existing
form, the Consent Order gave Cooper until August 2000 to choose among
several courses of remedial action: (1) upgrading the lagoon; (2) replacing the
lagoon with a self-contained treatment plant or a septic field, or (3) closing the
twenty-two trailer lots served by the lagoon. The Consent Order gave Cooper
until August 2002 to implement his chosen course of action.

After the Consent Order, discharges from the lagoon continued to violate the
permit. DEQ inspections of the creek found a strong sewage smell, decreased
oxygen levels, dark solids, and a proliferation of bloodworms, pollution-tolerant
organisms that thrive in low-oxygen environments like that provided by raw
sewage.

In August 2000, Cooper violated the 1998 Consent Order by failing to elect a
course of remedial action by the established deadline. This resulted in a 2001
amendment to the Consent Order, which imposed a $2,000 fine, set a new
deadline for a choice of remedy, and left in place the August 2002
implementation deadline. The amendment also set interim discharge limits that
were less demanding than those of the 1997 permit but still deemed protective
of the environment by DEQ.

10

In March 2002, Cooper's discharge permit expired with Cooper having failed to
file the necessary paperwork to receive a new permit. After the expiration of
the permit, DEQ treated the interim discharge limits in the 2001 amendment to

the Consent Order as a "de facto permit," until Cooper again violated the
Consent Order in August 2002. At that time, not only had Cooper failed to
complete the required update to the lagoon, but the lagoon was still operating
exactly as it had at the time of the 1998 Consent Order. In response, in October
2002 the State Water Control Board canceled the Consent Order, and DEQ
notified Cooper that he was no longer operating with a valid discharge permit.
11

Nevertheless, discharges from the lagoon into the creek continued. DEQ sent
Cooper many Notices of Violation and inspection reports stating that he was
discharging illegally. After an administrative hearing, DEQ in July 2003 issued
an order imposing a $10,000 fine and ordering Cooper to cease discharging.
Even after the order, the discharges continued, and DEQ continued to send
Cooper inspection reports and Notices of Violation.

12

In late 2003, the U.S. Environmental Protection Agency's Criminal

Investigation Division ("CID") began to investigate discharges from the lagoon.
On various dates between August 2003 and October 2004, DEQ inspectors
observed the lagoon, estimated the volume of the discharge, sampled the
discharge's pH and total residual chlorine, collected samples for fecal coliform
analysis, and completed inspection reports that were mailed to Cooper. A
number of the samples were found to have the maximum quantifiable
concentration of fecal coliform, a type of bacteria present in human feces.

13

On October 29, 2003, in an interview with CID Special Agent Matthew Goers,
Cooper admitted that he was discharging from the lagoon into the creek
without a permit and that DEQ had notified him that these discharges were in
violation of the VPDES program. Cooper acknowledged that he might go to
jail. He told Goers that he had hired an attorney to fight on his behalf and
stated, "I'm going to fight as long as God gives me the power to fight."

14

On October 21, 2004, Cooper was indicted on thirteen felony counts of

knowingly discharging a pollutant into waters of the United States without a
permit, in violation of 33 U.S.C. 1311(a) and 1319(c)(2)(A). After his
indictment, Cooper finally ceased discharging from the lagoon. He hired a
septic hauling company to collect sewage and ultimately disconnected most of
the trailers from the lagoon.

15

Before trial, the government sought a ruling on the admissibility of evidence of

Cooper's dealings with DEQ from 1998 until the start of the charging period in
2003. The district court allowed the evidence, finding that it was relevant to the
charged offenses and that it was admissible under Federal Rule of Evidence

404(b) as evidence of intent and the absence of mistake or accident.

16

During jury deliberations, the jury sent a question to the judge, asking for
clarification on how to weigh certain evidence relating to laboratory analysis of
the discharge samples. The court declined to give direction, explaining that
doing so would constitute an inappropriate encroachment upon the jury's role as
fact-finder.

17

After a three-day jury trial, on April 28, 2005 the jury found Cooper guilty on
nine counts.* The district court sentenced Cooper to 27 months' imprisonment,
plus a $30,000 fine for each count of conviction, resulting in a total fine of
$270,000. Defendant appeals.

II.
18

We briefly address at the outset Cooper's challenge to the district court's

evidentiary rulings. Cooper argues that the district court erred in admitting
evidence under Federal Rule 404(b) of Cooper's interactions with DEQ from
1998 to 2003. Reviewing the district court's ruling for abuse of discretion, see
United States v. Hedgepeth, 418 F.3d 411, 418-19 (4th Cir.2005), we find that
the court did not err in admitting this evidence.

19

Rule 404(b) prohibits the introduction of evidence of prior acts for the purpose
of proving the character of a person. Fed.R.Evid. 404(b). Rule 404(b) only
applies, however, to evidence relating to acts extrinsic to the conduct being
prosecuted. See United States v. Lipford, 203 F.3d 259, 268 (4th Cir.2000).
Evidence intrinsic to the story of the crime does not fall under Rule 404(b)'s
prohibition. See id. (evidence "served to complete the story" with respect to
conspiracy charge). Even where evidence predates the time period of the
indictment, the government is allowed to provide context relevant to the
criminal charges. United States v. Kennedy, 32 F.3d 876, 885 (4th Cir.1994).

20

In this case, the extended history of Cooper's dealings with DEQ is inextricably
intertwined with the CWA violations alleged at trial. The DEQ evidence
describes longstanding conditions at the lagoon and Cooper's awareness of
those conditions, a fact relevant to his mens rea under the CWA. At the very
least, the evidence explains how Cooper came to be without permission to
discharge into the creek, a necessary predicate to his being charged with
discharging pollutant without a permit. See id. (testimony about city drug
investigation relevant to prosecution arising from later federal investigation).

21

Even if this evidence were within the ambit of 404(b), it would, as the district

21

Even if this evidence were within the ambit of 404(b), it would, as the district
court noted, still be admissible. Rule 404(b) explicitly allows evidence that
furnishes proof of the defendant's knowledge and the "absence of mistake or
accident." See Fed.R.Evid. 404(b). The DEQ evidence is both relevant to and
necessary for establishing Cooper's mens rea. See United States v. Uzenski, 434
F.3d 690, 710 (4th Cir.2006). In this case, the government had to prove that the
defendant knowingly discharged a substance that is regulated as a pollutant
from the lagoon pipe into the creek. See 33 U.S.C. 1311(a), 1319(c)(2)(A);
United States v. Wilson, 133 F.3d 251, 264 (4th Cir.1997); United States v.
Sinskey, 119 F.3d 712, 715 (8th Cir.1997); United States v. Ahmad, 101 F.3d
386, 391 (5th Cir.1996); United States v. Hopkins, 53 F.3d 533, 541 (2d
Cir.1995); United States v. Weitzenhoff, 35 F.3d 1275, 1283-84 (9th Cir.1993).
The DEQ evidence demonstrates that Cooper did not act mistakenly or
accidently but knew that he was discharging sewage and was doing so into the
creek. The very existence of the DEQ permit established that Cooper was aware
that the lagoon discharge contained raw sewage and that it flowed into the
creek. From 1998 to 2003, multiple DEQ violation notices informed Cooper
that pollutant levels in the discharge were excessive. DEQ notified Cooper
repeatedly that he was in violation of his permit and, later, that he did not have
a permit. Given the government's burden of proof, the DEQ evidence was
relevant, reliable, and necessary to its task. See United States v. Queen, 132
F.3d 991, 995 (4th Cir.1997).

22

Nor did the potential for unfair prejudice or confusion outweigh the probative
value of the DEQ evidence. See id. Rule 403 exclusion should be invoked
rarely, because "[t]he general policy of the Federal Rules ... is that all relevant
material should be laid before the jury." Mullen v. Princess Anne Volunteer
Fire Co., Inc., 853 F.2d 1130, 1135 (4th Cir. 1988). The DEQ evidence, while
it may provoke disgust, is undoubtedly probative in a CWA prosecution for the
discharge of insufficiently treated human sewage. Evidence of criminal acts is
of course by nature prejudicial, but the standard for exclusion under Rule 403 is
"unfair" prejudice. See United States v. Williams, 445 F.3d 724, 730 (4th
Cir.2006). It was not unfair for the government to present this evidence. If
unsavory evidence were excludable on that account, the prosecution could
hardly prove its case.

23

Cooper also argues that the district court erred in its answer to a query put to it
by the jury during deliberations. The jury asked whether it was "reasonable to
consider numerous quality control issues of lab data/forms sufficient to render
all results of the lab questionable." The court declined to give further
instruction on the ground that it would constitute an inappropriate invasion of
the jury's province as fact-finder. Here, too, the district court did not abuse its
discretion. See United States v. Smith, 62 F.3d 641, 646 (4th Cir.1995)

(responses to jury questions on points of law "left to the sound discretion of the
district court"). In fact, the trial court must take care, in responding to a jury
question, not to encroach upon its fact-finding power. See United States v. Ellis,
121 F.3d 908, 925 (4th Cir.1997). It can hardly be error for the district court to
have accorded the jury this respect.
III.
24

Cooper also contends that the district court erred in denying his motion for a
judgment of acquittal for lack of sufficient evidence under Federal Rule of
Criminal Procedure 29. Cooper argues that the government failed to prove that
Cooper knew the waters into which he discharged pollutants "were a tributary
of a navigable water, or adjacent to a navigable water, or had a significant nexus
to a navigable water." The premise of this claim is that, under 33 U.S.C.
1311(a) and 1319(c)(2)(A), the government had to prove that Cooper was
aware of the facts that establish the federal government's jurisdiction over the
water for purposes of the CWA. For the reasons explained below, we reject this
contention.

A.
25

Cooper was convicted of knowingly discharging a pollutant without a permit

from a point source to navigable waters, which are defined as waters of the
United States. See 33 U.S.C. 1311(a), 1319(c)(2)(A), 1362(7). "Waters of
the United States" in this statutory scheme operates as a jurisdictional element.
A jurisdictional element of a federal offense states the basis of Congress' power
to regulate the conduct at issue: its "primary purpose is to identify the factor
that makes the [conduct] an appropriate subject for federal concern." United
States v. Yermian, 468 U.S. 63, 68, 104 S.Ct. 2936, 82 L.Ed.2d 53 (1984).
Without a jurisdictional basis for its exercise of its authority, Congress would
be acting beyond its enumerated powers under Article I, Section 8 of the
Constitution. "Waters of the United States" in the CWA is a classic
jurisdictional element, which situates Congress' authority to enact the statute in
"its traditional jurisdiction over waters that were or had been navigable in fact
or which could reasonably be so made." Solid Waste Agency of N. Cook County
v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 172, 121 S.Ct. 675, 148 L.Ed.2d
576 (2001).

26

It is well settled that mens rea requirements typically do not extend to the
jurisdictional elements of a crime that "the existence of the fact that confers
federal jurisdiction need not be one in the mind of the actor at the time he
perpetrates the act made criminal by the federal statute." United States v. Feola,

420 U.S. 671, 677 n. 9, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975); Yermian, 468
U.S. at 68-69, 104 S.Ct. 2936. This court has long recognized this principle in
construing jurisdictional elements of federal criminal statutes. See, e.g., United
States v. Langley, 62 F.3d 602, 605-06 (4th Cir.1995) (conviction under felonin-possession statute does not require knowledge of firearm's interstate nexus);
United States v. Darby, 37 F.3d 1059, 1067 (4th Cir.1994) (conviction for
transmitting threatening interstate communications does not require proof of
knowledge that threatening telephone call was interstate); United States v.
Squires, 581 F.2d 408, 410 (4th Cir.1978) (conviction under National Stolen
Property Act does not require proof of knowledge of interstate nature of
transportation of counterfeit securities); United States v. Green, 544 F.2d 746,
747-48 (4th Cir.1976) (per curiam) (conviction under firearms statute does not
require knowledge that dealer was federally licensed); United States v.
LeFaivre, 507 F.2d 1288, 1297-98 (4th Cir.1974) (conviction under Travel Act
does not require proof of knowledge that cashing of checks involved use of
interstate facilities).
27

Congress legislates against this well-established backdrop, aware that

jurisdictional elements generally assert federal jurisdiction but do not create
additional statutory elements as to which defendants must have formed the
appropriate mens rea in order to have broken the law. See Feola, 420 U.S. at
676, 95 S.Ct. 1255 & n. 9; Squires, 581 F.2d at 410 (interstate transportation
element "merely jurisdictional"); Green, 544 F.2d at 747 (federal licensure
element "jurisdictional only"); LeFaivre, 507 F.2d at 1297 n. 14 (interstate
facilities requirement "nothing more than the jurisdictional peg on which
Congress based federal jurisdiction").

28

In United States v. Feola, the Supreme Court recognized that it is possible, in

exceptional circumstances, that Congress might intend for a jurisdictional
element to have both a jurisdictional and substantive component, rather than
being "jurisdictional only." 420 U.S. at 677, 95 S.Ct. 1255 n. 9; see id. at 696,
95 S.Ct. 1255. The Court also suggested that the primary authority in
answering this question is the intent of Congress as expressed in the statute
itself. See id. at 678-79, 95 S.Ct. 1255; Green, 544 F.2d at 747. We thus turn to
consider whether Congress has expressed an intention that "waters of the
United States" in this case serve more than a jurisdictional function.

B.
29

Of the four other circuits to have considered the scope of "knowingly" in

1319(c)(2)(A), three have not extended it to "waters of the United States." See
Sinskey, 119 F.3d at 715 ("knowingly" in 1319(c)(2)(A) only "applies to the

underlying conduct prohibited by the statute"); Hopkins, 53 F.3d at 541

("knowingly" in 1319(c)(2)(A) means that defendant "knew the nature of his
acts and performed them intentionally"); Weitzenhoff, 35 F.3d at 1284
("knowingly" in 1319(c)(2)(A) refers to "knowingly engag[ing] in conduct
that results in a permit violation"). The Fifth Circuit has held that "knowingly"
applies to each element of the offense "[w]ith the exception of purely
jurisdictional elements," without stating explicitly whether "waters of the
United States" constitutes such a purely jurisdictional element. Ahmad, 101
F.3d at 391.
30

The CWA offers every reason to conclude that the term "waters of the United
States" as it operates in this case is "nothing more than the jurisdictional peg on
which Congress based federal jurisdiction." LeFaivre, 507 F.2d at 1297 n. 14.
We begin as always with an examination of the statute itself. See N.Y. State
Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S.
645, 655, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995). 33 U.S.C. 1319(c)(2)(A)
makes it a felony for any person to "knowingly violate[ ] section 1311...."
Section 1311(a) provides that "the discharge of any pollutant by any person
shall be unlawful." Id. 1311(a). Section 1362(12) defines the "discharge of a
pollutant" as the "addition of any pollutant to navigable waters," and section
1362(7) defines "navigable waters" as "waters of the United States." Id.
1362(7), 1362(12). "Waters of the United States" is further defined by
regulation. See 40 C.F.R 122.2.

31

The question, then, is whether Congress intended for the term "knowingly" in
1319(c)(2)(A) to extend, via 1311(a), to "navigable waters" in 1362(12),
and thus to "waters of the United States" in 1362(7), with the result that the
government must prove that Cooper was aware of the facts connecting the
small creek to the regulatory definition of "waters of the United States." To say
the least, the statute's string of provisions hardly compels such a reading. If
Congress meant to overcome the customary understanding that mens rea
requirements do not attach to jurisdictional elements, it would have spoken
much more clearly to that effect.

32

The stated purposes of the Act provide further support for this view. As
articulated by Congress, the principal goal of the Act is "to restore and
maintain the chemical, physical, and biological integrity of the Nation's
waters." 33 U.S.C. 1251(a). This purpose would be severely undermined if
polluters could only be prosecuted for knowingly polluting the nation's waters
when the government could prove they were aware of the facts conferring
federal jurisdiction. Such a blanket rule would be absurd in many cases,
including the present one. Cooper's deliberate discharge of human sewage into

running waters is exhaustively recorded. He knew he was discharging sewage

into them, he knew his treatment facilities were inadequate, and he knew he
was acting without a permit. It seems unlikely that Congress intended for
culpability in such an instance to turn upon whether the defendant was aware of
the jurisdictional nexus of these acts, any more than, for example, Congress
intended conviction of a felon-in-possession offense to turn upon the
defendant's knowledge of the interstate travels of a firearm. See Langley, 62
F.3d at 606.
33

This conclusion squares with the Supreme Court's analysis of congressional

intent as to jurisdictional elements in Feola. In that case, the Court considered
18 U.S.C. 111, proscribing assault of a federal officer. 420 U.S. at 672-73, 95
S.Ct. 1255. The Court recognized the "federal officer" requirement as a
jurisdiction-conferring element and went on to consider whether it also
functioned as a substantive element of the offensethat is, whether Congress
intended for the statute to punish only those defendants who were aware that
their victims were federal officers. See id. at 676, 95 S.Ct. 1255 & n. 9. The
Court concluded that Congress intended for the statute both to deter conduct
intended to obstruct federal law enforcement activities and to protect federal
law enforcement officers to the fullest extent possible. See id. at 678-79, 95
S.Ct. 1255. Given the statute's clear aims, the Court said, it "cannot be
construed as embodying an unexpressed requirement that an assailant be aware
that his victim is a federal officer. All the statute requires is an intent to assault,
not an intent to assault a federal officer." Id. at 684, 95 S.Ct. 1255.

34

Just as Congress in 18 U.S.C. 111 intended to "accord[] maximum protection

to federal officers," id., so Congress in the CWA clearly intended to provide
strong protection to the nation's water-ways. To attach a mens rea to the
jurisdictional element would as surely undermine Congress' intent here as it
would have in Feola. We cannot broadly exempt environmental crimes from
the longstanding rule that mens rea requirements do not pertain to jurisdictional
facts. Such a blanket exception would not only be astonishingly broad, but it
would also suggest without objective basis that separate and less stringent rules
apply to environmental harms. Finding in the CWA a broad exception to the
general rule would be tantamount to assuming that Congress, in creating
criminal penalties for environmental degradation, did not really mean what it
said.

35

The fact that Congress in the CWA expressed the additional goal of
"protect[ing] the primary responsibilities and rights of States to prevent, reduce,
and eliminate pollution" does not change the conclusion that Congress did not
intend for the government to prove the defendant's jurisdictional knowledge. 33

U.S.C. 1251(b). Congress' desire not to encroach upon the states is already
captured by the government's uncontroverted burden of proving the existence of
the jurisdictional facts. It would hardly further advance Congress' concern for
states to impose the additional burden of proving an individual's knowledge of
those jurisdictional facts. In cases like this one, such a requirement would in
fact impede state interests. In the CWA, Congress expressed its respect for
states' role through a scheme of cooperative federalism that enables states to
"implement ... permit programs" like the Virginia VPDES program. Id. In this
case, Virginia DEQ officers worked with the EPA to achieve a shared goal: an
end to years of deleterious pollution. It would be odd if Congress chose to
further this shared goal by making it substantially more difficult to prosecute
environmental crimes in even the most flagrant of cases.
36

Our conclusion today is further supported by the fact that it hardly encourages
exceptionable or unfair prosecution. The Supreme Court in Feola justified its
interpretation of 111 by noting that it posed "no snare for the unsuspecting:"

37

The situation is not one where legitimate conduct becomes unlawful solely
because of the identity of the individual or agency affected.... The concept of
criminal intent does not extend so far as to require that the actor understand not
only the nature of his act but also its consequence for the choice of a judicial
forum.

38

420 U.S. at 685, 95 S.Ct. 1255. "Criminal intent serves to separate those who
understand the wrongful nature of their act from those who do not, but does not
require knowledge of the precise consequences that may flow from that act
once aware that the act is wrongful." United States v. X-Citement Video, Inc.,
513 U.S. 64, 73 n. 3, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994).

39

This case differs from United States v. Wilson, where the defendants were
prosecuted under the CWA for knowingly discharging fill material into a
wetland without a permit. 133 F.3d at 253. In Wilson, the defendants contended
that they did not know that the parcels of land into which they discharged
material were, in fact, wetlands falling within the purview of the CWA; further,
the defendants contended that the Army Corps of Engineers, the body charged
with issuing permits governing discharge of fill material into CWA-regulated
wet-lands, had doubts on the same issue. Id. at 255. Moreover, Maryland law
did "not appear" to outlaw the activity in question. Id. at 264 n. *. Only in that
limited context, did this court hold that the case was not "governed by Feola"
and so the government bore the burden of proving, among other things, "that
the defendant was aware of the facts establishing the required link between the
wetland [into which he discharged the fill material] and waters of the United

States." Id. at 264 & n. *.

40

In this case, there is no record of any confusion on the part of the relevant
federal agency as to whether the CWA applies. Moreover, Cooper's conduct
discharging improperly treated human sewage into a creekis most certainly a
crime under Virginia law. Virginia's State Water Control Law prohibits
unpermitted discharge of sewage into "state waters," which are defined as "all
water on the surface and under the ground" that is wholly or partially within the
Commonwealth. See Va. Code Ann. 62.1-44.3, -44.5. Knowing violation of
this prohibition constitutes a felony punishable by one to three years'
imprisonment or a sentence of not more than twelve months and a fine of
$5,000 to $50,000 for each violation. See id. 62.1-44.32. Thus, on the
rationale of Wilson, this case is "governed by Feola." 133 F.3d at 264 n. *.

41

In sum, the creek's status as a "water of the United States" is simply a

jurisdictional fact, the objective truth of which the government must establish
but the defendant's knowledge of which it need not prove. The language of the
relevant statutes33 U.S.C. 1311(a), 1319(c)(2)(A), 1362(7)the
congressional intent that text plainly reflects, as well as relevant precedent, all
require this conclusion.

IV.
42

The government did, however, have to prove that Cooper knowingly discharged
the sewage into the creek. See 33 U.S.C. 1319(c)(2)(A); Wilson, 133 F.3d at
264; Sinskey, 119 F.3d at 715; Ahmad, 101 F.3d at 391; Hopkins, 53 F.3d at
541; Weitzenhoff, 35 F.3d at 1283-84. Cooper makes two contentions: that the
government failed to establish that Cooper's lagoon discharge reached the creek
and that it failed to prove that Cooper knew that it did so. We review this
evidence in the light most favorable to the government. See United States v.
Burgos, 94 F.3d 849, 860 (4th Cir.1996) (en banc).

43

First, Cooper claims the government failed to prove that Cooper's lagoon
discharged into the creek because DEQ Inspector Troy Nipper did not testify
that he had seen the discharge enter the creek in the course of his DEQ
inspections. This contention is without merit. On direct examination, Mr.
Nipper briefly described the inspection reports he completed during the
charging period on the discharge pouring from the lagoon's discharge pipe.
While Mr. Nipper never stated on the stand that the discharge from the pipe
entered the creek, his entire testimony was premised on that fact, as evidenced
by his discussion at the outset of a map that he helped to prepare depicting the
trailer park and the course of Sandy Creek. Moreover, Mr. Nipper's inspection

reports, entered into evidence as Government's Exhibit 60, directly connected

the discharge to the creek, noting the discharge's adverse impact on the
"receiving stream." Additionally, DEQ Inspector Casey MacGruder testified
that the discharge pipe and the creek were connected by a short channel. Ms.
MacGruder testified that the channel was "[m]aybe ten feet, if that. It's not far
before it hits the actual stream."
44

Second, the government provided sufficient evidence not only that the
pollutants discharged by Cooper flowed into the creek, but that he was well
aware of this fact. The DEQ evidence admitted to establish Cooper's state of
mind, see Fed. R.Evid. 404(b), provides ample proof of his knowledge that he
was discharging into the creek. Cooper's 1997-2002 DEQ permit stated on its
face that it allowed Cooper to discharge into a "receiving stream" that was part
of the Roanoke River basin. Indeed, the whole of Cooper's long saga of
interactions with DEQ revolved around the fact that he was discharging
pollutants into the creek. Cooper testified at the 2003 DEQ hearing that he was
at the lagoon "almost every day." It would have been difficult, to say the least,
for him to miss the DEQ inspectors who regularly surveyed the creek and took
note of the algae, bloodworms, dark solids, and other in-stream conditions.
Indeed, the inspection reports reflect that Cooper was present at some of the
inspections. It also would have been difficult for Cooper to miss the inspection
reports mailed to him after each inspection, which routinely recorded
conditions in the "receiving stream." The 1998 Consent Order, negotiated and
signed by Cooper, states that the lagoon "discharges to an unnamed tributary of
Sandy Creek." In 2001, Cooper submitted a permit renewal application that
stated that he discharged into "Sandy Run Branch." The permit, the inspections,
the reports, the violation notices, the warnings, the fines, the negotiations and
renegotiationsall these were founded squarely on the fact that Cooper was
discharging pollutants impermissibly into the creek and knew it very well.

45

If that were not enough, EPA Special Agent Matthew Goers testified that on
October 29, 2003-during the EPA criminal investigationCooper admitted that
his lagoon was discharging into the creek. When asked on direct examination if
Cooper "sa[id] anything ... regarding his knowledge of whether the lagoon was
or was not discharging into Sandy Creek or an unnamed tributary of Sandy
Creek," Mr. Goers responded, "He did. He told us on the evening of the
interview that his lagoon was continuing to discharge." Mr. Goers continued,
"Essentially what he was describing is 3,000 gallons a day were being
discharged to the lagoon. And as the lagoon filled to a certain point, it would
automatically spill over through gravity towards the outfall and into the creek."
The evidence could hardly be more compelling. It supported the jury's verdict
on all counts of which Cooper was convicted.

46

47

The judgment of the district court is hereby

AFFIRMED.

Notes:
*

One count was dismissed by the district court on the government's motion. On
the three other counts, the jury returned a verdict of not guilty. The evidence
supporting these counts differed from that supporting the counts on which
Cooper was convicted. The discharge sample for Count 4 was analyzed for E.
Coli Bacteria using a methodology approved by DEQ for drinking water but
not wastewater analysis. The laboratory records for the Count 12 sample
indicated that materials that were past their expiration date had been used in the
sample's analysis. The Count 13 sample did not undergo bacterial analysis
because of a closure of the laboratory due to flooding