Discharge of pollutants into non-navigable tributary waters is subject to criminal provisions of Clean Water Act

STATUTORY CONSTRUCTION United States v. Hubenka, No. 05-8006, ___ F.3d ___ (10th Cir. Feb. 21, 2006)(Wyoming). Appeal of conviction for discharging pollutants into the Wind River in violation of the Clean Water Act, 33 U.S.C. §§ 1311(a) and 1319(c)(2)(A). HELD: Because potential for pollutants to migrate from tributary to navigable waters downstream constitutes “significant nexus” between those waters, Army Corps of Engineers “tributary rule” is permissible interpretation of Clean Water Act and therefore entitled to deference under framework set out in Chevron U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 842–43 (1984). Accordingly, Clean Water Act was properly applied to defendant’s construction of dikes on non-navigable waters of Wind River and he was properly convicted of knowingly discharging pollutants into waters of United States. Read the opinion here.