United States of America v.  D. J. Cooper

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 05-4956 
D. J. COOPER,
Defendant-Appellant. 
Appeal from the United States District Court
for the Western District of Virginia, at Lynchburg.
Norman K. Moon, District Judge.
(CR-04-6)
Argued: February 2, 2007
Decided: March 28, 2007
Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the opinion,
in which Judge Motz and Judge Traxler joined.
COUNSEL
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.

-- 1 of 16 --

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 knowl-
edge as to the jurisdictional status of the waters he affected, we affirm
the judgment of the district court.
I.
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 bot-
tom of the lagoon, while the fluid level rises until it reaches an over-
flow structure in the middle of the lagoon, from which it flows
2 UNITED STATES v. COOPER

-- 2 of 16 --

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 Pol-
lutant 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 accor-
dance with the CWA. See id. § 1342(b). The Commonwealth of Vir-
ginia maintains an EPA-approved Virginia Pollution Discharge
Elimination System ("VPDES") program, pursuant to which the Vir-
ginia 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.
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 patho-
gens, 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
3 UNITED STATES v. COOPER

-- 3 of 16 --

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 sev-
eral courses of remedial action: (1) upgrading the lagoon; (2) replac-
ing 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 cho-
sen course of action.
After the Consent Order, discharges from the lagoon continued to
violate the permit. DEQ inspections of the creek found a strong sew-
age 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.
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 per-
mit," 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 dis-
charge permit.
Nevertheless, discharges from the lagoon into the creek continued.
DEQ sent Cooper many Notices of Violation and inspection reports
4 UNITED STATES v. COOPER

-- 4 of 16 --

stating that he was discharging illegally. After an administrative hear-
ing, DEQ in July 2003 issued an order imposing a $10,000 fine and
ordering Cooper to cease discharging. Even after the order, the dis-
charges continued, and DEQ continued to send Cooper inspection
reports and Notices of Violation.
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 dis-
charge, sampled the discharge’s pH and total residual chlorine, col-
lected 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 coli-
form, a type of bacteria present in human feces.
On October 29, 2003, in an interview with CID Special Agent Mat-
thew 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."
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 discharg-
ing from the lagoon. He hired a septic hauling company to collect
sewage and ultimately disconnected most of the trailers from the
lagoon.
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.
During jury deliberations, the jury sent a question to the judge, ask-
ing for clarification on how to weigh certain evidence relating to labo-
5 UNITED STATES v. COOPER

-- 5 of 16 --

ratory 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.
After a three-day jury trial, on April 28, 2005 the jury found Coo-
per guilty on nine counts.* The district court sentenced Cooper to 27
months’ imprisonment, plus a $30,000 fine for each count of convic-
tion, resulting in a total fine of $270,000. Defendant appeals.
II.
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 interac-
tions with DEQ from 1998 to 2003. Reviewing the district court’s rul-
ing 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.
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 extrin-
sic 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).
*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 support-
ing 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 clo-
sure of the laboratory due to flooding.
6 UNITED STATES v. COOPER

-- 6 of 16 --

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 investi-
gation relevant to prosecution arising from later federal investigation).
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 pol-
lutant 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. 1994). The DEQ evi-
dence 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 gov-
ernment’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).
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."
7 UNITED STATES v. COOPER

-- 7 of 16 --

Mullen v. Princess Anne Volunteer Fire Co., Inc., 853 F.2d 1130,
1135 (4th Cir. 1998). The DEQ evidence, while it may provoke dis-
gust, is undoubtedly probative in a CWA prosecution for the dis-
charge 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 govern-
ment to present this evidence. If unsavory evidence were excludable
on that account, the prosecution could hardly prove its case.
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 ques-
tionable." The court declined to give further instruction on the ground
that it would constitute an inappropriate invasion of the jury’s prov-
ince as fact-finder. Here, too, the district court did not abuse its dis-
cretion. 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 discre-
tion 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.
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 naviga-
ble 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 Coo-
per 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.
8 UNITED STATES v. COOPER

-- 8 of 16 --

A.
Cooper was convicted of knowingly discharging a pollutant with-
out 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 (1984). Without a jurisdic-
tional basis for its exercise of its authority, Congress would be acting
beyond its enumerated powers under Article I, Section 8 of the Con-
stitution. "Waters of the United States" in the CWA is a classic juris-
dictional 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 (2001).
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 fed-
eral statute." United States v. Feola, 420 U.S. 671, 677 n.9 (1975);
Yermian, 468 U.S. at 68-69. This court has long recognized this prin-
ciple 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 felon-in-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 threaten-
ing 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 fed-
erally licensed); United States v. LeFaivre, 507 F.2d 1288, 1297-98
(4th Cir. 1974) (conviction under Travel Act does not require proof
9 UNITED STATES v. COOPER

-- 9 of 16 --

of knowledge that cashing of checks involved use of interstate facili-
ties).
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 & 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").
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
n.9; see id. at 696. The Court also suggested that the primary author-
ity in answering this question is the intent of Congress as expressed
in the statute itself. See id. at 678-79; 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 jurisdic-
tional function.
B.
Of the four other circuits to have considered the scope of "know-
ingly" 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 juris-
dictional element. Ahmad, 101 F.3d at 391.
10 UNITED STATES v. COOPER

-- 10 of 16 --

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 exami-
nation of the statute itself. See N.Y. State Conference of Blue Cross
& Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995).
33 U.S.C. § 1319(c)(2)(A) makes it a felony for any person to "know-
ingly 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.
The question, then, is whether Congress intended for the term
"knowingly" in § 1319(c)(2)(A) to extend, via § 1311(a), to "naviga-
ble waters" in § 1362(12), and thus to "waters of the United States"
in § 1362(7), with the result that the government must prove that Coo-
per was aware of the facts connecting the small creek to the regula-
tory definition of "waters of the United States." To say the least, the
statute’s string of provisions hardly compels such a reading. If Con-
gress 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.
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 know-
ingly 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
11 UNITED STATES v. COOPER

-- 11 of 16 --

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.
This conclusion squares with the Supreme Court’s analysis of con-
gressional 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. The Court recognized the "federal offi-
cer" requirement as a jurisdiction-conferring element and went on to
consider whether it also functioned as a substantive element of the
offense — that 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 & n.9. The Court concluded that Congress
intended for the statute both to deter conduct intended to obstruct fed-
eral law enforcement activities and to protect federal law enforcement
officers to the fullest extent possible. See id. at 678-79. Given the stat-
ute’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.
Just as Congress in 18 U.S.C. § 111 intended to "accord[ ] maxi-
mum 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 degra-
dation, did not really mean what it said.
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 conclu-
sion that Congress did not intend for the government to prove the
defendant’s jurisdictional knowledge. 33 U.S.C. § 1251(b). Congress’
12 UNITED STATES v. COOPER

-- 12 of 16 --

desire not to encroach upon the states is already captured by the gov-
ernment’s uncontroverted burden of proving the existence of the juris-
dictional 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, Con-
gress expressed its respect for states’ role through a scheme of coop-
erative federalism that enables states to "implement . . . permit
programs" like the Virginia VPDES program. Id. In this case, Vir-
ginia 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 diffi-
cult to prosecute environmental crimes in even the most flagrant of
cases.
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:"
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.
420 U.S. at 685. "Criminal intent serves to separate those who under-
stand 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 (1994).
This case differs from United States v. Wilson, where the defen-
dants 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 fall-
ing within the purview of the CWA; further, the defendants contended
that the Army Corps of Engineers, the body charged with issuing per-
13 UNITED STATES v. COOPER

-- 13 of 16 --

mits 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 prov-
ing, among other things, "that the defendant was aware of the facts
establishing the required link between the wetland [into which he dis-
charged the fill material] and waters of the United States." Id. at 264
& n.*.
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 creek — is most certainly a crime under Virginia law. Virgin-
ia’s State Water Control Law prohibits unpermitted discharge of sew-
age into "state waters," which are defined as "all water on the surface
and under the ground" that is wholly or partially within the Common-
wealth. 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.*.
In sum, the creek’s status as a "water of the United States" is sim-
ply 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 statutes — 33 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.
The government did, however, have to prove that Cooper know-
ingly 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
14 UNITED STATES v. COOPER

-- 14 of 16 --

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).
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. Nip-
per’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."
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. Coo-
per’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 "re-
ceiving stream." The 1998 Consent Order, negotiated and signed by
15 UNITED STATES v. COOPER

-- 15 of 16 --

Cooper, states that the lagoon "discharges to an unnamed tributary of
Sandy Creek." In 2001, Cooper submitted a permit renewal applica-
tion that stated that he discharged into "Sandy Run Branch." The per-
mit, the inspections, the reports, the violation notices, the warnings,
the fines, the negotiations and renegotiations — all these were
founded squarely on the fact that Cooper was discharging pollutants
impermissibly into the creek and knew it very well.
If that were not enough, EPA Special Agent Matthew Goers testi-
fied that on October 29, 2003 — during the EPA criminal investiga-
tion — Cooper 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 cer-
tain 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.
The judgment of the district court is hereby
AFFIRMED.
16 UNITED STATES v. COOPER

-- 16 of 16 --