Conviction for negligent discharge of pollutant does not require proof defendant knew discharge would enter U.S. waters

STATUTORY CONSTRUCTION/SENTENCING United States v. Ortiz, No. 04-1228, ___ F.3d ___ (10th Cir. Nov. 1, 2005)(Colorado). Government appeal of district court’s judgment of acquittal on defendant’s jury trial conviction for negligently discharging pollutant in violation of the Clean Water Act at 33 U.S.C. §§ 1311(a) and 1319(c)(1)(A). HELD: (1) Failure to exercise degree of care that someone of ordinary prudence would exercise under same circumstance that results in discharge of pollutant into United States waters without permit to do so, constitutes criminal violation of Clean Water Act at § 1319(c)(1)(A). Negligent discharge of pollutant in violation of Act does not require proof that defendant knew discharge would enter United States waters. (2) Factual impossibility of obtaining permit to discharge pollutant into United States waters is no defense to sentence enhancement under U.S.S.G. § 2Q1.3(b)(4) for “discharge without a permit.” Section 2Q1.3(b)(4) enhancement may apply despite unavailability of permit for offense conduct. Read the opinion here.