FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAMES PHILIP LUCERO,

Defendant-Appellant.

No. 19-10074

D.C. No.

4:16-cr-00107-HSG-1

OPINION

Appeal from the United States District Court

for the Northern District of California

Haywood S. Gilliam, Jr., District Judge, Presiding

Argued and Submitted September 14, 2020

San Francisco, California

Filed March 4, 2021

Before: Bridget S. Bade and Patrick J. Bumatay, Circuit 

Judges, and Rosemary Márquez,* District Judge.

Opinion by Judge Bumatay;

Partial Concurrence and Partial Dissent by Judge Bade

* The Honorable Rosemary Márquez, United States District Judge 

for the District of Arizona, sitting by designation.
2 UNITED STATES V. LUCERO

SUMMARY**

Criminal Law

The panel reversed a conviction on three counts of 

knowingly discharging a pollutant in violation of the Clean 

Water Act, and remanded for a new trial, in a case in which 

the defendant orchestrated a scheme charging construction 

companies to dump dirt and debris on lands near the San 

Francisco Bay—sites that included “wetlands” and a 

“tributary” subject to the Act.

The panel held that the Act requires the government to 

prove that a defendant knew he was discharging material 

“into water,” but need not prove that the defendant knew he 

discharged the pollutant in “to waters of the United States.” 

The panel explained that the latter phrase is a jurisdictional 

element connecting the Clean Water Act to Congress’s 

Commerce Clause powers. The panel held that the jury 

instructions failed to make clear the requirement that the 

defendant knew the pollutant was discharged “into water,” 

and could not say that the error was harmless. The panel 

therefore reversed the conviction and remanded for a new 

trial with jury instructions that make clear the government’s 

burden to prove that the defendant knowingly discharged fill 

material “into water.”

The panel held that the regulation defining “waters of the 

United States” at the time of the defendant’s trial is not 

unconstitutionally vague. The panel explained that although 

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. LUCERO 3

the definitions are complex, they provide an ascertainable 

standard for when “wetlands” and “tributaries” constitute 

jurisdictional waters.

The panel held that a newly promulgated 2020 regulation 

that substantially narrowed the definition of “waters of the 

United States” represents a change in the law that does not 

apply retroactively.

Dissenting in part, Judge Bade joined the majority’s 

opinion except as to the sections that conclude that the 

reference to “waters of the United States” is a purely 

jurisdictional element and therefore not subject to the 

“knowingly” mens rea requirement.

COUNSEL

Angela M. Hansen (argued) and Robin Packel (argued), 

Assistant Federal Public Defenders; Steven G. Kalar, 

Federal Public Defender; Office of the Federal Public 

Defender, Oakland, California; for Defendant-Appellant.

David Gunter (argued) and John L. Smeltzer, Attorneys; Eric 

Grant, Deputy Assistant Attorney General; Environment and 

Natural Resources Division, United States Department of 

Justice, Washington, D.C.; for Plaintiff-Appellee.

Norman D. James, Fennemore Craig P.C., Phoenix, Arizona; 

Thomas J. Ward, National Association of Home Builders, 

Washington, D.C.; for Amicus Curiae National Association 

of Home Builders.
4 UNITED STATES V. LUCERO

Anthony L. François and Jonathan Wood, Pacific Legal 

Foundation, Sacramento, California, for Amici Curiae 

Chantell and Michael Sackett, Duarte Nursery Inc., John 

Duarte, Roger J. Lapant Jr., Oregon Cattlemen’s 

Association, and Washington Cattlemen’s Association.

OPINION

BUMATAY, Circuit Judge:

Most Americans would be surprised to learn that dry 

land might be treated as “navigable waters” under the Clean 

Water Act. Yet that’s just the oddity we face here. James 

Lucero orchestrated a scheme charging construction 

companies to dump dirt and debris on lands near the San 

Francisco Bay. As it turns out, these sites actually included

“wetlands” and a “tributary” subject to the Act. 

Accordingly, Lucero was charged with three counts of 

knowingly discharging a pollutant in violation of the Act. 

See 33 U.S.C. §§ 1319(c)(2)(A); 1311(a). A jury found him 

guilty on all counts.

Lucero brings this appeal, raising a number of arguments 

for why his conviction should be reversed. Although we 

reject most of his contentions, we agree that reversal and 

remand is nevertheless required. The Act requires the 

government to prove a defendant knew he was discharging 

material “into water.” Id. § 1362(6). Because the jury 

instructions failed to make this knowledge element clear, 

and the error was not harmless, we reverse Lucero’s 

conviction and remand for a new trial.
UNITED STATES V. LUCERO 5

I.

A.

Some regulatory background is in order first. In 1972, 

Congress passed the Clean Water Act, which, among other 

things, criminalizes the discharge of pollutants into 

“navigable waters” without an appropriate permit. See 

33 U.S.C. §§ 1311(a), 1362(12), 1344. Lucero doesn’t 

dispute that he engaged in the discharge of dirt and debris, 

that such material constitutes a “pollutant” under the Act, 

and that he did not have the requisite permit. Instead, his 

appeal centers on the “navigable waters” element of the

statute.

That phrase, though it might seem straightforward on its 

face, is complicated by its statutory definition: “The term 

‘navigable waters’ means the waters of the United States, 

including the territorial seas.” 33 U.S.C. § 1362(7). 

Responsibility for deciding what constitutes “waters of the 

United States”—also referred to as jurisdictional waters—

rests with two federal agencies: the Environmental 

Protection Agency (“EPA”) and the Army Corps of 

Engineers. See 33 C.F.R. § 328.3 (2014). They define the 

contours of this phrase by promulgating regulations listing 

the types of water features that qualify as waters of the 

United States. At the time of Lucero’s conduct in 2014, the 

regulation included two types of jurisdictional waters at 

issue here: (1) “[t]ributaries” of certain other waters of the 

United States; and (2) wetlands adjacent to other waters of 
6 UNITED STATES V. LUCERO

the United States (that are not themselves wetlands). See id.

§ 328.3(a)(5), (7) (2014).1

The expansive regulatory definition of “waters of the 

United States” was reined in somewhat after the Supreme 

Court’s fractured decision in Rapanos v. United States, 

547 U.S. 715 (2006). Justice Scalia’s plurality opinion held 

that water of the United States “includes only those 

relatively permanent, standing or continuously flowing 

bodies of water forming geographic features that are 

described in ordinary parlance as streams, . . . oceans, rivers, 

and lakes,” and “wetlands with a continuous surface 

connection to bodies that are waters of the United States in 

their own right.” Id. at 739, 742 (plurality) (quotation marks 

and citation omitted). Justice Kennedy wrote a concurrence 

in which he set out a much broader interpretation: wetlands 

adjacent to navigable-in-fact waters and even wetlands 

adjacent only to nonnavigable tributaries could be 

considered jurisdictional waters if there is a “significant 

nexus” between the wetlands and traditionally navigable 

waters. Id. at 779–82 (Kennedy, J., concurring). We later 

adopted Justice Kennedy’s test as our own. N. Cal. River 

Watch v. City of Healdsburg (“Healdsburg”), 496 F.3d 993, 

999–1000 (9th Cir. 2007).

Since Lucero’s offense in 2014, the agencies have gone 

through several different iterations of the “waters of the 

1 The regulation also includes (1) waters that are, have been, or could 

be used “in interstate or foreign commerce”; (2) all interstate waters; 

(3) all “other waters” whose “use, degradation or destruction” could 

“affect interstate or foreign commerce”; (4) all “impoundments” of other 

jurisdictional waters; and (5) the “territorial seas.” 33 C.F.R. 

§ 328.3(a)(1)–(4), (6) (2014).
UNITED STATES V. LUCERO 7

United States” regulation. The current regulation was 

promulgated in April 2020. See 33 C.F.R. § 328.3 (2020).

B.

Lucero executed his dumping scheme near the San 

Francisco Bay during the summer months of July and 

August 2014, which is the “hot and dry” season even in a 

normal year. And 2014 was not a normal year—the area was 

suffering from a long-term drought. Although there was 

evidence that Lucero had “walked the land” with a business 

associate at the end of May 2014, the record is bereft of 

evidence about the condition of the land at that time or 

evidence about whether Lucero would have known that the 

sites were inundated with water, rather than dry land.

Needless to say, these areas did not consist of waters that 

are actually navigable-in-fact. Rather, application of the 

Clean Water Act—and thus, whether the statute was 

violated—depended on whether the sites met the regulatory 

definition of “waters of the United States.” The government 

based its theory for the three areas on their connection to the 

Mowry Slough, which is undisputedly a navigable “water of 

the United States” near the San Francisco Bay.

The government charged Lucero with two counts based 

on discharges into “wetlands” adjacent to the Mowry 

Slough. Both of these sites were separated from the slough 

by a levee made of packed dirt “to keep water in or out.” The 

government also presented evidence that there was a direct 

hydrological connection between these two wetlands and the 

Mowry Slough. For the first wetland site, the government 

presented evidence that the area was connected to a tributary 

(“Tributary 1”), which flowed underneath the levee into the 

slough. For the second wetland site, the government’s 

experts showed that water flowed from the site through a 
8 UNITED STATES V. LUCERO

series of tributaries, which ultimately converged into the 

slough.

The government’s third charge was based on dirt and 

debris dumped into Tributary 1, which was itself a separate 

“water of the United States” as a “[t]ributary” of the Mowry 

Slough. See 33 C.F.R. § 328.3(a)(5) (2014). Tributary 1 

was not navigable, and government experts testified that its 

flow was “seasonal.”

A jury convicted Lucero on all three counts, and this 

appeal followed. We review each of his legal claims de 

novo. See United States v. Weitzenhoff, 35 F.3d 1275, 1283 

(9th Cir. 1993).2

II.

Lucero first argues that the jury instructions used to 

convict him erroneously omitted the Clean Water Act’s 

knowledge element. Second, he argues that the definition of 

“waters of the United States” is unconstitutionally vague. 

Finally, Lucero argues that the 2020 regulatory definition of 

“waters of the United States” should apply retroactively to 

his case. While we reject the latter two claims, we agree with 

Lucero that the Act requires a knowledge element not 

submitted to the jury and that he is entitled to a new trial.

2 In a concurrently filed memorandum disposition, we address 

Lucero’s other arguments that the district court committed various trial 

errors by allowing certain expert testimony, excluding a declaration from 

an EPA agent, and refusing to give the jury instruction he requested.
UNITED STATES V. LUCERO 9

A.

We first address the knowledge requirement of 33 U.S.C. 

§ 1319(c)(2)(A), whether it was adequately conveyed by the 

jury instructions, and whether any error was harmless.

1.

Section 1319(c) creates criminal penalties for violation 

of the Clean Water Act. 33 U.S.C. § 1319(c). In particular, 

§ 1319(c)(2)(A) makes it a felony for anyone to “knowingly 

violate[] section 1311” of the Act. Id. § 1319(c)(2)(A). 

Section 1311, in turn, provides that “the discharge of any 

pollutant by any person shall be unlawful” without a permit. 

Id. § 1311(a). When the word “knowingly” precedes the 

verb “violate,” it applies to the verb’s direct object, which in 

this case is § 1311. See Rehaif v. United States, 139 S. Ct. 

2191, 2195 (2019). So if we stopped here, this statutory 

structure indicates that a person simply needs to 

“knowingly” “discharge . . . any pollutant” without a permit 

to be found guilty of the crime. 

But like Russian nesting dolls, the statutory definitions 

keep going:

• The phrase “discharge of a pollutant” is 

defined as “any addition of any pollutant 

to navigable waters from any point 

source.” 33 U.S.C. § 1362(12).

o The word “pollutant” is defined as 

one of multiple enumerated 

substances, such as dredged spoil or 
10 UNITED STATES V. LUCERO

solid waste, “discharged into water.” 

Id. § 1362(6).3

o The term “navigable waters” is 

defined as “waters of the United 

States.” Id. § 1362(7).

o “Point source” means “any 

discernible, confined and discrete 

conveyance, including but not limited 

to any pipe, ditch, channel, tunnel, 

conduit, . . . from which pollutants are 

or may be discharged.” Id. 

§ 1362(14).

Stringing together these definitions gives us a statute that 

prohibits any person from “knowingly” engaging in the 

“addition of any” listed substance “discharged into water” 

3 The full definition of “pollutant” is “dredged spoil, solid waste, 

incinerator residue, sewage, garbage, sewage sludge, munitions, 

chemical wastes, biological materials, radioactive materials, heat, 

wrecked or discarded equipment, rock, sand, cellar dirt and industrial, 

municipal, and agricultural waste discharged into water.” 33 U.S.C. 

§ 1362(6). We read the phrase “discharged into water” as applying to all 

the enumerated substances in the list. Under the series-qualifier canon, 

“when there is a straightforward, parallel construction that involves all 

nouns or verbs in a series, a . . . postpositive modifier normally applies 

to the entire series.” A. Scalia & B. Garner, Reading Law: The 

Interpretation of Legal Texts 147 (2012); see also United States v. 

Deaton, 209 F.3d 331, 335 (4th Cir. 2000) (“The definition of pollutant, 

in turn, specifically includes ‘dredged spoil’ that has been ‘discharged 

into water.’”); Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 

145 F.3d 1399, 1410 (D.C. Cir. 1998) (Silberman, J., concurring) (“But 

rock and sand only become pollutants, according to the statute, once they 

are ‘discharged into water.’”); United States v. Pozsgai, 999 F.2d 719, 

725 (3d Cir. 1993) (“The Act defines ‘pollutant’ to mean ‘dredged spoil, 

rock, sand’ and other materials ‘discharged into water[.]’”).
UNITED STATES V. LUCERO 11

“to waters of the United States” “from any point source.”

33 U.S.C. §§ 1319(c)(2)(A), 1311(a), 1362(6), (7), (12). 

Notably, as the Third Circuit recognized, the Act creates an 

“apparent redundancy” because “into water” and “to waters 

of the United States” appear together back-to-back. United 

States v. Pozsgai, 999 F.2d 719, 726 (3d Cir. 1993). The 

question then becomes how the phrases “into water” and “to 

waters of the United States” “co-exist in this definition.” Id.

4

The parties offer competing views on how the court 

should resolve this tension. Lucero essentially asks us to 

read out the phrase “discharged into water” from the 

statutory definition of pollutant. In his view, “knowingly” 

must then reach the phrase “to waters of the United States” 

as the prepositional phrase modifying “addition of any 

pollutant,” and the government must prove his knowledge of 

that element. The government urges us to give effect to both 

phrases—“into water” and “to waters of the United 

States”—by treating the former as the prepositional phrase 

modifying “addition of any pollutant” and the latter as a 

jurisdictional element. Under the government’s view, the 

knowledge requirement only extends to “into water.”

We think the correct interpretation of the Clean Water 

Act supports the government’s position. First, we are 

unwilling to simply read out the phrase “discharged into 

water” from the definition of “pollutant.” 33 U.S.C. 

§ 1362(6). Indeed, “to ignore the plain text” of a statute is 

“something we are not at liberty to d[o].” In re DBSI, Inc., 

4 The Third Circuit answered the question by simply ignoring the 

“into water” part of the “pollutant” definition. See Pozsgai, 999 F.2d 

at 726–27 & n.7. The court, in essence, treated the term “to navigable 

waters” from § 1362(12) as modifying the term “discharged into water” 

from § 1362(6). As explained below, we disagree with this analysis.
12 UNITED STATES V. LUCERO

869 F.3d 1004, 1013 (9th Cir. 2017). Even when the law 

includes unusual or mismatched provisions, “[o]ur task is to 

apply the text, not to improve upon it.” Pavelic & LeFlore 

v. Marvel Entm’t Grp., 493 U.S. 120, 126 (1989). After all, 

we have “no roving license” to disregard statutory text to 

make our jobs easier in interpreting it. Michigan v. Bay Mills 

Indian Cmty., 572 U.S. 782, 794 (2014).

The “apparent redundancy” can also be readily explained 

by the “distinctive role interstate commerce elements play in 

federal criminal law.” Luna Torres v. Lynch, 136 S. Ct. 

1619, 1624 (2016). In our federal system, Congress cannot 

punish crimes generally, but must tie criminal law to “one of 

its constitutionally enumerated powers, such as the authority 

to regulate interstate commerce.” Id. As a result, most 

federal offenses consist of both “substantive elements” and 

“a jurisdictional one,” which “spell[s] out the warrant for 

Congress to legislate.” Id. Sometimes it can be difficult to 

discern the difference between the two, but the Court has 

explained that substantive elements are those that “primarily 

define[] the behavior that the statute calls a violation of 

federal law,” or relate to “‘the harm or evil’ the law seeks to 

prevent.” Id. (alteration in original) (internal quotation 

marks and citations omitted). Jurisdictional elements, on the 

other hand, “do not describe the evil Congress seeks to 

prevent, but instead simply ensure that the Federal 

Government has the constitutional authority to regulate the 

defendant’s conduct (normally, . . . through its Commerce 

Clause power).” Rehaif, 139 S. Ct. at 2196 (quoting Luna 

Torres, 136 S.Ct. at 1630–31). In other words, a 

jurisdictional element is one that identifies “the factor that 

makes the [conduct] an appropriate subject for federal 

concern,” United States v. Yermian, 468 U.S. 63, 68 (1984), 

or the “‘fact that confers federal jurisdiction,’” United States 
UNITED STATES V. LUCERO 13

v. Jinian, 725 F.3d 954, 965 (9th Cir. 2013) (quoting United 

States v. Feola, 420 U.S. 671, 676 n.9 (1975)).

In enacting the Clean Water Act, Congress wanted to 

pass the broadest possible protections against water 

pollution. See United States v. Riverside Bayview Homes, 

Inc., 474 U.S. 121, 133 (1985). The Act’s stated objective 

is “to restore and maintain the chemical, physical, and 

biological integrity of the Nation’s waters.” 33 U.S.C. 

§ 1251(a). The Act is “an all-encompassing program of 

water pollution regulation.” Milwaukee v. Illinois, 451 U.S. 

304, 318 (1981). And the phrase “into water” supports its 

statutory objective by broadly proscribing the dumping of 

pollutants “into” any “water” from any conveyance. See

Riverside Bayview, 474 U.S. at 133 (holding that “Congress 

chose to define the waters covered by the Act broadly.”). Put 

differently, the phrase tells us where the “pollutant” must be 

added to constitute the evil—water pollution—that Congress 

sought to prevent through the Clean Water Act: from a point 

source “into water.” Consequently, the phrase “into water” 

is an integral part of § 1311(a)’s substantive prohibition. Cf. 

County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462, 

1481 & n.3 (2020) (Thomas, J., dissenting) (doubting that 

the Act would be violated if a substance was discharged into 

“the air” based on definition of “pollutant”).

The phrase “to waters of the United States,” on the other 

hand, is a jurisdictional element, connecting the Clean Water 

Act to Congress’s Commerce Clause powers. Because 

Congress’s authority does not extend to every “water” in the 

United States, the Act includes a jurisdictional hook to 

confine it to the federal government’s constitutional 

boundaries. As the Fourth Circuit recognized, “‘[w]aters of 

the United States’ in the [Act] is a classic jurisdictional 

element, which situates Congress’ authority to enact the 
14 UNITED STATES V. LUCERO

statute in ‘its traditional jurisdiction over waters that were or 

had been navigable in fact or which could reasonably be so 

made.’” United States v. Cooper, 482 F.3d 658, 664 (4th 

Cir. 2007) (quoting Solid Waste Agency of N. Cook Cty v. 

U.S. Army Corps of Eng’rs, 531 U.S. 159, 172 (2001)); see

also Rapanos, 547 U.S. at 724 (plurality) (observing that the 

agencies “sought to extend the definition of ‘the waters of 

the United States’ to the outer limits of Congress’s 

commerce power”). Thus, the Act’s explicit goal is to 

protect water in the United States as expansively as possible, 

and the “to waters of the United States” element is the “fact 

that confers federal jurisdiction.” Jinian, 725 F.3d at 965.

Once fully understood then, the Clean Water Act’s 

apparent redundancy is harmonized. Section 1311(a) has 

both a substantive prohibition (the addition of pollutants 

“into water” from a point source) and a jurisdictional hook 

(limiting that water to “waters of the United States.”). While 

not the most artfully drafted legislation, in our view, no 

reason exists to depart from its plain language or to judicially 

excise some of its words.

From here, the question of how far the Act’s knowledge 

element extends is straightforward. First, under plain 

grammatical rules, it’s clear that § 1319(c)(2)’s knowledge 

requirement must extend to § 1311(a)’s substantive 

elements, including “into water.” See 33 U.S.C. 

§§ 1319(c)(2)(A), 1311(a), 1362(6), (12). “In ordinary 

English, where a transitive verb has an object, listeners in 

most contexts assume that an adverb (such as knowingly) 

that modifies the transitive verb tells the listener how the 

subject performed the entire action, including the object as 

set forth in the sentence.” Flores-Figueroa v. United States, 

556 U.S. 646, 650 (2009). Put another way, “once 

[‘knowingly’] is understood to modify the object of those 
UNITED STATES V. LUCERO 15

verbs, there is no reason to believe it does not extend to the 

phrase which limits that object[.]” Id. at 657 (Scalia, J., 

concurring).5 Here, the statutory phrase forms a single

action: the “addition of any” enumerated substance 

“discharged into water” from a point source. See 33 U.S.C. 

§§ 1311(a), 1362(6), (12) (emphasis added). Accordingly, 

for a defendant to “knowingly” add a pollutant in violation 

of the Act, he must know that he discharged an enumerated 

substance from a conveyance, and that the substance was 

“discharged into water.” Id. § 1362(6).

This interpretation also accords with the longstanding 

presumption that criminal statutes require knowledge of the 

statutory elements that “‘criminalize otherwise innocent 

conduct.’” Rehaif, 139 S. Ct. at 2195 (quoting United States 

v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994)); see also 

Elonis v. United States, 135 S. Ct. 2001, 2009 (2015). The 

statutory definition of “pollutant” contains a long list of 

substances, such as sand and rocks, which are not inherently 

wrongful to discharge in the abstract. 33 U.S.C. § 1362(6). 

But when these seemingly innocuous substances are added 

from a point source to water—regardless whether it is 

navigable water—then the discharge creates water pollution. 

After all, “[v]irtually all water, polluted or not, eventually 

makes its way to navigable water.” Hawaii Wildlife Fund, 

5 The phrase “into water” is not the object of the verbal form of 

“addition”; it is a prepositional phrase. But in any event, the rationale of 

Flores—that an adverb ordinarily tells the listener how the “entire 

action” was performed—applies with equal force to this prepositional 

phrase. Indeed, Flores itself offered a hypothetical involving a 

prepositional phrase. See 556 U.S. at 650 (“[I]f a bank official says, 

‘Smith knowingly transferred the funds to his brother’s account,’ we 

would normally understand the bank official’s statement as telling us that 

Smith knew the account was his brother’s.”).
16 UNITED STATES V. LUCERO

140 S. Ct. at 1470.6 Thus, requiring knowledge of the 

defendant’s dumping of the substance “into water” from a 

point source ensures that he knows he’s committing the 

crime targeted by Congress—water pollution.

On the other hand, when it comes to jurisdictional 

elements, “the default rule flips: Courts assume that 

Congress wanted such an element to stand outside the 

otherwise applicable mens rea requirement.” Luna Torres, 

136 S. Ct. at 1631. That’s because “jurisdictional elements 

normally have nothing to do with the wrongfulness of the 

defendant’s conduct[.]” Rehaif, 139 S. Ct. at 2196. Lucero 

suggests that dumping into “navigable waters” is (at least 

partly) the criminalized conduct and, thus, the knowledge 

requirement should apply to it. But nothing in the Clean 

Water Act indicates that Congress was only concerned about 

the welfare of “navigable waters” as opposed to the 

country’s waters as a whole. In fact, Congress expressly 

stated its goal to protect the “integrity of the Nation’s 

waters” in general while recognizing the States’ role in 

achieving this goal. See 33 U.S.C. §§ 1251(a)–(b). Thus, 

neither the Clean Water Act’s text nor stated purpose 

suggests that Congress wanted only discharges into 

“navigable waters” to be “in the mind of the actor at the time 

he perpetrates the act made criminal by the federal statute.” 

Feola, 420 U.S. at 676 n.9 (defining when an element 

becomes substantive for purposes of a knowledge 

6 The concern for water pollution is not new. At common law, “[b]y 

far the most commonly used doctrines protecting surface water quality 

are riparian rights and nuisance.” Peter N. Davis, Federal and State 

Water Quality Regulation and Law in Missouri, 55 Mo. L. Rev. 411, 484 

(1990); see also Roger Meiners & Bruce Yandle, Common Law and the 

Conceit of Modern Environmental Policy, 7 Geo. Mason L. Rev. 923, 

938–41 (1999) (describing development of riparian rights at common 

law).
UNITED STATES V. LUCERO 17

requirement).7 We think the better reading of the statute is 

to recognize Congress’s broad concern for water pollution 

and limit “waters of the United States” to its jurisdictional 

moorings.

In sum, the government need not prove that the 

defendant knew he discharged the pollutant in “to waters of 

the United States.” Instead, the knowledge requirement 

imposed by § 1319(c)(2)(A) compels the government to 

prove only that a defendant knew he discharged a substance 

“into water.”

2.

Our dissenting colleague raises thoughtful critiques to 

our approach, and we agree that this statute is not a model of 

clarity. Ultimately, however, we do not believe the dissent’s 

critiques can carry the day.

The dissent primarily argues that our interpretation of the 

statute would be absurd because treating the phrase 

“discharged into water” as part of § 1319(c)’s substantive 

prohibition would mean that the CWA criminalizes “all sorts 

of innocent acts,” like “heating a tea kettle,” “using the 

restroom,” or “skipping a rock across a pond.” See Dissent 

at 36. Our dissenting colleague also believes that our 

interpretation is both underinclusive and overinclusive of the 

7 Likewise, the government refers to the term “waters of the United 

States” as “jurisdictional waters.” See, e.g., 33 C.F.R. § 328.3(a) (2020); 

Clean Water Rule: Definition of “Waters of the United States”, 80 Fed. 

Reg. 37054-01, 37057 (June 29, 2015) (“In this final rule, the agencies 

define ‘waters of the United States’ to include eight categories of 

jurisdictional waters.”).
18 UNITED STATES V. LUCERO

outcomes the CWA is supposed to prohibit. Id. at 36, 41. 

We disagree with all these points.

As a threshold matter, we have not seen the absurdity 

canon applied in the manner the dissent suggests. For one, 

we’ve never seen the canon used to determine whether an 

element is jurisdictional. More fundamentally, though, our 

dissenting colleague takes our reading of the knowledge 

requirement of three words in the statute, ignores the rest of 

the law, and then declares our interpretation absurd. But that 

is not how we read statutes and that is not how the absurdity 

canon was meant to be applied. As the Supreme Court has 

reminded us, this canon is to be employed sparingly. The 

absurdity doctrine will “override the literal terms of a statute 

only under rare and exceptional circumstances.” Crooks v. 

Harrelson, 282 U.S. 55, 60 (1930). “[T]o justify a departure 

from the letter of the law upon that ground, the absurdity 

must be so gross as to shock the general moral or common 

sense.” Id. “[O]therwise, we might be rewriting the statute 

rather than correcting a technical mistake.” X-Citement 

Video, 513 U.S. at 82 (Scalia, J., dissenting).

We think this means, at a minimum, that the absurdity 

canon should only be used to evaluate the statute in 

context—not myopically focusing on a single three-word 

phrase and then declaring freedom from the legislative text 

because of that phrase’s absurd results. Indeed, “no 

interpretive fault is more common than the failure to follow 

the whole-text canon, which calls on the judicial interpreter 

to consider the entire text, in view of its structure and of the 

physical and logical relation of its many parts.” Antonin 

Scalia & Bryan Garner, Reading Law: The Interpretation of 

Legal Texts 153 (2012). Employing the absurdity canon in 

this way—devoid of the context of the statute—comes 

dangerously close to judicially creating a “roving license” to 
UNITED STATES V. LUCERO 19

just strike troublesome or disfavored statutory text. Bay 

Mills, 572 U.S. at 794.8

Moreover, § 1319, in context, leads to no absurdity 

whatsoever. While we read the Act as requiring knowledge 

of the pollutant being “discharged into water,” such as 

ponds, lakes, streams, and maybe even a kettle of tea, that is 

only one part of the statute. Construing “water” in context 

with the Act’s other elements, especially the requirement 

that any discharge be from a “point source,” ensures that the 

CWA criminalizes only those activities falling within 

“reasonable notion[s] of water pollution.” See Dissent at 36. 

A defendant only violates the Act if he knowingly discharges 

a pollutant into water from a conveyance, such as a “pipe, 

ditch, channel, tunnel, conduit, well, discrete fissure, 

container, rolling stock, concentrated animal feeding 

operation, or vessel or other floating craft.” See 33 U.S.C. 

§ 1362(14). This effectively requires that the “water” 

involved be an equivalent to a body of water, not simply a 

droplet of H2O as the dissent thinks. Reading these two 

phrases together therefore eliminates the possibility that 

heating tea kettles, skipping rocks, using the restroom, and 

the other parade of horribles imagined by the dissent would 

come within the CWA’s ambit. See Dissent at 36.

9 Instead, 

8 Our dissenting colleague draws on Holy Trinity Church v. United 

States, 143 U.S. 457 (1892) for support. Dissent at 37. But the approach 

taken in that case has long been disfavored. See Antonin Scalia, A 

Matter of Interpretation 18 (1997) (describing Holy Trinity as the 

“prototypical case involving the triumph of supposed ‘legislative intent’ 

(a handy cover for judicial intent) over the text of the law”).

9 Indeed, looking at the CWA without context would render our 

dissenting colleague’s interpretation absurd as well. If we were to ignore 

the point-source element as the dissent does, that interpretation would 

mean that skipping rocks at the beach or swimming in the ocean would 
20 UNITED STATES V. LUCERO

the best and most natural way to read the provision is that it 

prohibits polluting our Nation’s waters by way of 

conveyances—i.e., water pollution. As a result, the dissent’s 

charge of an absurd “overinclusiveness” falls flat; even 

without the jurisdictional element, our reading of the CWA 

doesn’t extend to innocuous acts. Accordingly, read in light 

of the full statute, the CWA’s prohibition as “mandated by 

its plain language is not absurd at all, much less sufficiently 

absurd to justify departure from a plain words 

interpretation.” Safe Air For Everyone v. EPA, 488 F.3d 

1088, 1099 (9th Cir. 2007).

The dissent also faults our interpretation for being 

“underinclusive” because the term “water” alone might not 

cover pollution of “arroyos, areas adjacent to water, or other 

dry areas” that would constitute “waters of the United 

States.” See Dissent at 41 (citing Oxford English 

Dictionary). But the Supreme Court has expressly called it 

a “simplistic response” to look only to the “conventionally 

identifiable” definition of waters in light of “the realities of 

the problem of water pollution that the Clean Water Act was 

intended to combat.” Riverside Bayview, 474 U.S. at 131–

32. The Supreme Court long ago observed that “the 

transition from water to solid ground” is “far from obvious.” 

Id. at 132. Rather, “between open waters and dry land” 

exists “a huge array of areas that are not wholly aquatic but 

nevertheless fall far short of being dry land.” Id. at 132; see 

also Rapanos, 547 U.S. at 740 (plurality) (discussing the 

violate the law. See 33 U.S.C. § 1362(7) (defining “navigable waters” 

to include the “territorial seas”). Under that reading, hundreds of 

thousands of vacationers would be in legal jeopardy every summer. Of 

course, that would be an absurdity. But, in context of the whole statute, 

the law does no such thing. Accordingly, this misplaced absurdity 

exercise doesn’t justify the dissent’s extension of the mens rea 

requirement to the “waters of the United States” element.
UNITED STATES V. LUCERO 21

“inherent ambiguity in drawing the boundaries of any 

‘waters’”). Accordingly, the Court has held that the broader 

term “waters” reasonably includes the narrower term 

“waters of the United States.” Riverside Bayview, 474 U.S. 

at 132–33 (granting deference to agency’s definition of 

waters based on “evident breadth of congressional concern 

for protection of water quality and aquatic ecosystems”). 

Nothing in our opinion forecloses “arroyos, areas adjacent to 

water, or other dry areas,” see Dissent at 41, from being 

treated as “water” under 33 U.S.C. § 1362(6).10

Finally, while the dissent recognizes that “waters of the 

United States” is jurisdictional, it nevertheless declines to 

apply the default presumption that mens rea does not apply 

to such elements. See Luna Torres, 136 S. Ct. at 1631 

(“Courts assume that Congress wanted [a jurisdictional] 

element to stand outside the otherwise applicable mens rea

requirement.”). Notably, the dissent fails to identify any 

other case, and we have found none, holding that a 

demonstrably jurisdictional element is in fact something 

more—thus, requiring mens rea. It appears, then, that the 

dissent would have us be the first to so hold.

* * *

We agree with the dissent that jurists of good faith can 

disagree with the meaning of the CWA here. Dissent at 45. 

But we believe that the weight of precedent and the 

traditional canons of statutory interpretation require us to 

hold that the knowledge requirement of § 1319(c)(2)(A) 

10 Tellingly, we are adopting the government’s position here. The 

government has the greatest interest in ensuring the ability to prosecute 

cases under the CWA and it does not share the dissent’s concern.
22 UNITED STATES V. LUCERO

extends only to “discharge into water” as part § 1311’s 

prohibition, not to “waters of the United States.”

3.

With assurances that we have the proper understanding 

of the statute’s knowledge requirement, we now turn to 

whether the jury was properly instructed, and if not, whether 

that error was harmless. We look to “the instructions as a 

whole” to determine if the substance of the law was “fairly 

and correctly covered.” Dang v. Cross, 422 F.3d 800, 805 

(9th Cir. 2005) ((internal quotation marks and citations 

omitted). The government bears the burden of proving 

beyond a reasonable doubt that the error was harmless. 

United States v. Benamor, 937 F.3d 1182, 1190 (9th Cir. 

2019).

The jury instructions listed the following elements:

(1) That on or about the dates charged, the 

defendant knowingly discharged or 

caused to be discharged a pollutant, in 

this case, fill material;

(2) That the pollutant was discharged from a 

point source;

(3) That the discharge was to a “water of the 

United States;” and

(4) That the defendant had no permit from 

the United States Army Corps of 

Engineers to discharge the pollutant.

Nowhere do these instructions state that Lucero had to 

know that the pollutant was discharged “into water.” The 
UNITED STATES V. LUCERO 23

only knowledge requirement is with respect to the first 

element: the discharge of a pollutant, in this case, fill 

material. Although the jury instructions elsewhere define 

“fill material” as “material placed in ‘waters of the United 

States,’” this definition is found five pages away, and the 

instructions do not indicate that Lucero had to know the 

material was placed in “waters of the United States” to meet 

the definition of fill material. The instructions also explicitly 

say that “the government is not required to prove that 

defendant knew that the material came within the legal 

definition of ‘pollutant.’” So the most straightforward 

reading of the instructions is that the jury needed to find only 

that Lucero knowingly discharged the fill material—not that 

he knew the fill material was added “into water.” As 

explained above, this erroneously omits the statute’s mens 

rea element.

Nor can we say this was harmless error. Under harmless 

error analysis, courts may affirm a conviction, even if based 

on erroneous jury instructions, where it is “clear beyond a 

reasonable doubt that a rational jury would have found the 

defendant guilty absent the error[.]” Neder v. United States, 

527 U.S. 1, 18 (1999). Before we do so, however, we 

demand “strong and convincing evidence” that the jury 

would have reached the same result even if it had been 

properly instructed. United States v. Alferahin, 433 F.3d 

1148, 1158 (9th Cir. 2006) (citations omitted). When the 

evidence relating to the omitted element is “neither 

overwhelming nor uncontested,” the error is not harmless. 

United States v. Montoya-Gaxiola, 796 F.3d 1118, 1125 (9th 

Cir. 2015).

The record evidence that Lucero knew he discharged into 

water is both underwhelming and contested. Although there 

is evidence about the wet conditions and wetland-loving 
24 UNITED STATES V. LUCERO

vegetation in the area where Lucero dumped the dirt and 

debris, the site’s conditions fluctuated depending on whether 

it was the wet or dry season—and Lucero dumped during the 

dry season following a drought. The only evidence that 

related specifically to Lucero was testimony that he “walked 

the land” with an associate towards the end of May 2014. 

But there is no indication of what the land looked like at the 

time, or whether this walk would have revealed to Lucero 

that the area was inundated with water rather than simply dry 

land. Finally, Lucero made an offer of proof in case the 

district court adopted his requested knowledge instruction. 

See United States v. Nordby, 225 F.3d 1053, 1061 n.6 (9th 

Cir. 2000) (recognizing that the court “look[s] to the trial 

record and [the defendant’s] representations on appeal” 

about what evidence he would have adduced regarding the 

omitted element), overruled on other grounds by United 

States v. Buckland, 289 F.3d 558 (9th Cir. 2002). This 

evidence included expert testimony, testimony from local 

police, and statements from federal officials about the 

difficulty involved in identifying this area as a wetland. 

Lucero also would have presented photographs of the sites, 

which he claims show them to be dry without visible signs 

of water.

On this record, we cannot say that a properly instructed 

jury clearly would have found Lucero guilty. We therefore 

reverse Lucero’s conviction and remand for a new trial with 

jury instructions that make clear the government’s burden to 

prove that Lucero knowingly discharged fill material “into 

water.”

B.

Lucero also argues that the definition of “waters of the 

United States,” especially the meaning of “wetlands” and 

“tributaries,” is unconstitutionally vague. We disagree.
UNITED STATES V. LUCERO 25

A criminal law can be void if it is “so vague that it fails 

to give ordinary people fair notice of the conduct it punishes, 

or so standardless that it invites arbitrary enforcement.” 

Johnson v. United States, 576 U.S. 591, 595 (2015). This is 

true regardless of whether the crime is codified in a statute 

or a regulation. See United States v. Elias, 269 F.3d 1003, 

1015 (9th Cir. 2001). But a law is not unconstitutionally 

vague simply because it is difficult to determine whether it 

has been violated in a particular case. Instead, there must be 

an unreasonable amount of indeterminacy or subjectivity 

regarding what is even being prohibited in the first place. 

See United States v. Williams, 553 U.S. 285, 306 (2008); see 

also Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971) 

(explaining that statute criminalizing “annoying” others was 

“vague, not in the sense that it requires a person to conform 

his conduct to an imprecise but comprehensible normative 

standard, but rather in the sense that no standard of conduct 

is specified at all”).

Likewise, in considering vagueness challenges, we must 

acknowledge that, “[c]ondemned to the use of words, we can 

never expect mathematical certainty from our language.” 

Grayned v. City of Rockford, 408 U.S. 104, 110 (1972); see 

also Williams, 553 U.S. at 304 (“[P]erfect clarity and precise 

guidance have never been required even of regulations that 

restrict [First Amendment] expressive activity,” which is 

subject to a heightened vagueness standard) (citation 

omitted). For this reason, we consider the extent to which a 

more definite law is simply not possible. Kolender v. 

Lawson, 461 U.S. 352, 361 (1983) (“Although due process 

does not require impossible standards of clarity, this is not a 

case where further precision in the statutory language is 

either impossible or impractical.”) (internal quotation marks 

and citations omitted). A law may be “marked by flexibility 

and reasonable breadth, rather than meticulous specificity,” 
26 UNITED STATES V. LUCERO

but it will not be void for vagueness if “it is clear what the 

ordinance as a whole prohibits.” Grayned, 408 U.S. at 110 

(internal quotation marks and citations omitted).

Applying these principles to the Clean Water Act, we 

hold that the regulation defining “waters of the United 

States” at the time of Lucero’s trial is not unconstitutionally 

vague. Although the definitions are complex, they 

nevertheless provide an ascertainable standard for when 

“wetlands” and “tributaries” constitute jurisdictional 

waters.11

1.

Take wetlands first. An area is classified as “wetlands” 

when inundated with water “at a frequency and duration 

sufficient to support, and that under normal circumstances 

do support, a prevalence of vegetation typically adapted for 

life in saturated soil conditions,” such as “swamps, marshes, 

bogs, and similar areas.” 33 C.F.R. § 328.3(b) (2014). Such 

wetlands become “waters of the United States” when 

“adjacent”—meaning, “bordering, contiguous, or 

neighboring”—to other jurisdictional waters. Id. 

§ 328.3(a)(7), (c). Although it may be time-consuming, 

difficult, and expensive to determine whether a given area 

falls within this definition, the standard for making this 

determination is nevertheless clear. “That close cases may 

arise in applying this test does not make it unconstitutional, 

given there will always be an inherent but permissible degree 

of uncertainty in applying any standards-based test.” 

11 We analyze whether the law defining jurisdictional waters is 

vague as construed by the Court’s decision in Rapanos. See United 

States v. Lanier, 520 U.S. 259, 266 (1997) (holding that courts should 

look to prior judicial decisions interpreting a statute in considering 

whether it is vague).
UNITED STATES V. LUCERO 27

Yamada v. Snipes, 786 F.3d 1182, 1190–91 (9th Cir. 2015) 

(emphasis added).

Lucero’s vagueness challenge centers on the concept of 

“adjacency.”12 He contends that the law was made 

unconstitutionally vague in light of Justice Kennedy’s 

concurrence in Rapanos. Justice Kennedy explained that 

wetlands must, either “alone or in combination with 

similarly situated lands in the region,” have a “significant 

nexus” to traditionally navigable waters to qualify as 

jurisdictional waters under the Act. Rapanos, 547 U.S. 

at 780 (Kennedy, J., concurring).13 Justice Kennedy further 

12 Lucero focuses much of his argument on the fact that the Court 

has struggled to define when wetlands can constitute jurisdictional 

waters, particularly in the fractured opinions from Rapanos. But the 

disagreement in Rapanos did not arise because the law was hopelessly 

vague. Rather, it arose because of competing views about the proper 

scope of the regulations in light of the statutory text, the Commerce 

Clause, and federalism principles. Rapanos, 547 U.S. at 731, 737–38 

(plurality); id. at 776–77, 782–83 (Kennedy, J., concurring); id. at 803–

04 (Stevens, J., dissenting).

13 Lucero and amici argue that the regulation’s vagueness is 

compounded by the confusion about which opinion in Rapanos 

controls—Justice Scalia’s plurality or Justice Kennedy’s concurrence. 

They are correct that, after United States v. Davis, 825 F.3d 1014 (9th 

Cir. 2016) (en banc), our caselaw regarding how to read a fractured Court 

opinion has shifted. We now look to the “narrowest” opinion by 

reasoning rather than results. Id. at 1021.

But we need not determine here which opinion in Rapanos controls 

in light of Davis. The “touchstone [of the vagueness inquiry] is whether 

the statute, either standing alone or as construed, made it reasonably clear 

at the relevant time that the defendant’s conduct was criminal.” Lanier, 

520 U.S. at 267 (emphasis added). At the time of Lucero’s offense, there 

was no confusion in the Ninth Circuit: we had squarely adopted Justice 

Kennedy’s concurrence as controlling. See Healdsburg, 496 F.3d 

at 999–1000. Any confusion about which Rapanos opinion controlled 
28 UNITED STATES V. LUCERO

clarified that a “significant nexus” exists when the wetlands 

“significantly affect the chemical, physical, and biological 

integrity” of traditional navigable water. Id. Finally, Justice 

Kennedy added that the nexus requirement can be readily 

inferred if the wetlands are adjacent to navigable-in-fact 

water by the adjacency alone. Id.

Although phrases like “similarly situated” and 

“significant nexus” add some imprecision to the standard for 

determining when a wetland constitutes jurisdictional 

waters, both phrases provide an ascertainable, qualitative 

standard akin to others found in the law. See Johnson, 

576 U.S. at 603–04 (explaining that standards like 

“substantial risk,” “grave risk,” and “unreasonable risk” are 

not vague when applied to actual conduct, rather than an 

imaginary crime); United States v. Backlund, 689 F.3d 986, 

997 (9th Cir. 2012) (holding that “likely to cause a 

significant surface disturbance” standard not 

unconstitutionally vague). Plus, “similarly situated” has 

been clarified through regulatory guidance to mean other 

“wetlands adjacent to the same tributary.” Orchard Hill 

Bldg. Co. v. U.S. Army Corps of Eng’rs, 893 F.3d 1017, 1022 

(7th Cir. 2018) (describing post-Rapanos guidance issued by 

the agencies). Accordingly, even when wetlands require a 

“significant nexus” to traditionally navigable waters, the law 

is not unconstitutionally vague.

did not exist until Davis in 2016. Lucero, then, was “on notice from . . .

Healdsburg at the time of his [dumping] activities that wetlands and nonnavigable tributaries are subject to CWA jurisdiction if the wetlands” 

satisfy Justice Kennedy’s significant nexus test. United States v. 

Robertson, 875 F.3d 1281, 1293 (9th Cir. 2017), cert. granted, judgment 

vacated, 139 S. Ct. 1543 (2019). We express no view on whether Justice 

Kennedy’s concurrence continues to be the controlling decision from 

Rapanos following our decision in Davis.
UNITED STATES V. LUCERO 29

Moreover, the facts of this case make the question much 

simpler. The government argued that the wetlands where 

Lucero dumped debris were adjacent to the Mowry Slough, 

which is a traditional navigable-in-fact water. As the 

government’s counsel argued,

[Lucero] dumped on property that you know 

. . . are adjacent to Mowry Slough. They 

border them. They are contiguous to them. 

And they are certainly neighboring them. 

They are close. And you can infer that that 

adjacency means that these lands have a 

significant nexus to the Slough.

Under Justice Kennedy’s concurrence, these straightforward 

facts would be sufficient to infer the wetlands were “waters 

of the United States” if accepted by the jury. The 

government’s proof demonstrates that the regulation is not 

vague as applied to Lucero’s conduct. See United States v. 

Harris, 705 F.3d 929, 930, 932 (9th Cir. 2013) (relying on 

case-specific facts to reject as-applied vagueness challenge).

2. 

Lucero also attacks the definition of “tributary” as 

unconstitutionally vague as applied to him. Although that 

term is not defined, this court has long recognized the 

common understanding of a tributary as “[a] stream which 

contributes its flow to a larger stream or other body of 

water.” Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 

526, 533 (9th Cir. 2001) (citation omitted). This is an 

ordinary word, which has been given its ordinary meaning 

in prior caselaw. The jury instructions in Lucero’s trial 

tracked this definition. Hence, the standard for identifying a 

tributary is not impermissibly vague.
30 UNITED STATES V. LUCERO

Lucero tries to inject vagueness with two different 

arguments, neither of which is convincing. First, he argues 

that it is unclear whether a water must be “relatively 

permanent” or if it can be “seasonal or intermittent” to still 

qualify as a “tributary” under the Act. But there was no such 

confusion: at the time of Lucero’s conduct, we had already 

held that seasonal streams can constitute tributaries. See 

Headwaters, 243 F.3d at 534. After Rapanos, we again 

affirmed our conclusion that “intermittent streams (at least 

those that are seasonal) can be waters of the United States.” 

United States v. Moses, 496 F.3d 984, 991 (9th Cir. 2007).

Lucero next argues that the definition of tributary is 

vague because it is unclear whether a jury must find an 

“ordinary high water mark” (“OHWM”). But that definition 

has nothing to do with Tributary 1. An OHWM is relevant 

only to determining whether an ephemeral stream is a water 

of the United States. Rapanos, 547 U.S. at 781 (Kennedy, 

J., concurring); see also Final Notice of Issuance and 

Modification of Nationwide Permits, 65 Fed. Reg. 12818, 

12823 (March 9, 2000) (“An ephemeral stream is a water of 

the United States, provided it has an OHWM. An ephemeral 

stream that does not have an OHWM is not a water of the 

United States.”). That means a seasonal, continuously 

flowing tributary can be a jurisdictional “tributary” without 

having an OHWM. See 33 C.F.R. § 328.3(a)(5) (2014). 

Here, there was undisputed evidence that Tributary 1 had a 

continuous (albeit seasonal) flow. Thus, whatever confusion 

might exist about jurisdiction over ephemeral streams, it is 

not relevant for Tributary 1.14

14 Lucero also argues that it was not clear whether the government 

must show a “significant nexus” between Tributary 1 and a navigable 

water, or if Justice Kennedy’s “significant nexus” test is only for 
UNITED STATES V. LUCERO 31

C.

Finally, we address whether the newly promulgated 

2020 regulation applies to Lucero’s case. Lucero was 

convicted under the “water of the United States” regulation 

that was operative at the time of his offense conduct in 2014. 

See 33 C.F.R. § 328.3 (2014). Since then, the regulation has 

been revised several times. As relevant here, the agencies 

promulgated a new rule in April 2020 that substantially 

narrowed the definition of “waters of the United States” (and 

in turn, the scope of the Clean Water Act). See The 

Navigable Waters Protection Rule: Definition of “Waters of 

the United States,” 85 Fed. Reg. 22,250 (April 21, 2020) 

(“2020 Rule”).

The 2020 Rule represents a change in the law, which 

applies prospectively only and not to Lucero’s case. Cf. 

Landgraf v. USI Film Prods., 511 U.S. 244, 247 (1994) 

(holding that amendment to Title VII of Civil Rights Act did 

not apply retroactively, even to cases pending on appeal). 

There is a general presumption that “‘congressional 

enactments and administrative rules will not be construed to 

have retroactive effect unless their language requires this 

result.’” Id. at 264 (quoting Bowen v. Georgetown Univ. 

Hosp., 488 U.S. 204, 208 (1988)); see also Consumer Fin. 

wetlands, rather than tributaries. Compare Rapanos, 547 U.S. at 767 

(explaining that jurisdiction depends on “the connection [e.g., a 

significant nexus] between a nonnavigable water or wetland and a 

navigable water”); with id. at 787 (remanding for determination of 

whether the “wetlands at issue possess a significant nexus with navigable 

waters”) (emphases added). But regardless, the jury instructions 

required the government to prove a significant nexus between Tributary 

1 and Mowry Slough. So any error in imposing a significant-nexus 

element for Tributary 1 cuts in Lucero’s favor by making it harder to 

convict him.
32 UNITED STATES V. LUCERO

Prot. Bureau v. Gordon, 819 F.3d 1179, 1196 (9th Cir. 2016) 

(“While retroactivity of legislation and regulations is not per 

se unlawful, we have a presumption against retroactivity that 

generally requires that the legal effect of conduct . . . 

ordinarily be assessed under the law that existed when the 

conduct took place.”) (internal quotation marks and citations 

omitted).15 Nothing in the text of the regulation suggests 

retroactive application. To the contrary, it states that the new 

limits on what constitutes jurisdictional waters would 

“replace[] the recodified pre-2015 regulations, upon its 

effective date,” 85 Fed. Reg. at 22,260, and that 

determinations made under prior versions of the regulation 

would be preserved. Id. at 22,331–32.

Lucero’s authority for applying the 2020 Rule 

retroactively is distinguishable because they relate to judicial

(or administrative adjudicatory) decisions changing the law, 

rather than a newly enacted statute or regulation. Such 

decisions apply retroactively because they are treated as “an 

authoritative statement of what the statute meant before as 

well as after the decision of the case giving rise to that 

construction,” rather than as announcing a new law. Rivers 

v. Roadway Express Inc., 511 U.S. 298, 312–13 (1994) 

(emphasis added). Here, the 2020 rule is a new law, not a 

15 At common law, the presumption against retroactivity did not 

apply when a penal statute was repealed. In such cases, outstanding 

prosecutions under the repealed statute could not continue. See 

Landgraf, 511 U.S. at 271. But that common-law rule was abrogated by 

statute. Id. (citing 1 U.S.C. § 109); see also United States v. Brown, 

429 F.2d 566, 568 (5th Cir. 1970) (“Under [1 U.S.C. § 109], penalties 

accruing while a statute was in force may be prosecuted after its repeal, 

unless there is an express provision to the contrary in the repealing 

statute.”).
UNITED STATES V. LUCERO 33

judicial interpretation of an existing law, so it does not apply 

retroactively.

III.

Given the statutory definition of “pollutant,” Lucero’s 

conviction must be reversed because the jury instructions did 

not make clear that he had to know his discharge was “into 

water.” We REVERSE and REMAND for a new trial.

BADE, Circuit Judge, dissenting in part:

I am pleased to join the majority’s opinion except as to 

Sections II.A.1 and II.A.2, which conclude that the reference 

to “waters of the United States” in the Clean Water Act’s 

(CWA) prohibition on discharges is a purely jurisdictional 

element and therefore not subject to the statute’s 

“knowingly” mens rea requirement.1 I do not believe that 

the text of the discharge prohibition supports the majority’s 

1 Section 1311(a) of Title 33 makes unlawful “the discharge of any 

pollutant” without a license. To understand § 1311(a)’s application to 

this case, we must read it in light of the CWA’s relevant definitions, in 

particular § 1362(6) (defining “pollutant” as listed substances 

“discharged into water”), § 1362(7) (defining “navigable waters” as “the 

waters of the United States”), and § 1362(12) (defining “discharge of a 

pollutant” and “discharge of pollutants,” in part, as “any addition of any 

pollutant to navigable waters from any point source”). Section 

1319(c)(2)(A), in turn, makes it a felony to “knowingly violate[] section 

1311.” For simplicity’s sake, I will generally refer to the criminal 

prohibition at issue here—a product of “knitting together the various 

statutory provisions,” United States v. Pozsgai, 999 F.2d 719, 726 (3d 

Cir. 1993)—as the “discharge prohibition.”
34 UNITED STATES V. LUCERO

reading, and I respectfully dissent from that part of the 

opinion.

I.

“Stringing together” the relevant provisions, the 

majority reads the discharge prohibition as “prohibit[ing] 

any person from ‘knowingly’ engaging in the ‘addition of 

any’ listed substance ‘discharged into water’ ‘to waters of 

the United States’ from any point source.” Maj. Op. 10–11

(quoting 33 U.S.C. §§ 1319(c)(2)(A), 1311(a), 1362(6), (7), 

(12)). The majority observes, however, that this reading 

yields an “apparent redundancy.” Maj. Op. 11 (quoting

Pozsgai, 999 F.2d at 726). Specifically, “to waters of the 

United States” seems to render the preceding prepositional 

phrase, “into water,” superfluous. I agree that the various 

statutory provisions, when strung together, result in this 

apparent redundancy. I also agree with the majority’s 

framing of the core question here: how “into water” and “to 

waters of the United States” “co-exist” in the discharge 

prohibition. Maj. Op. 11 (quoting Pozsgai, 999 F.2d at 726).

From there, however, we part ways. The majority 

reconciles the apparent redundancy by interpreting the 

substantive prohibition as covering the discharge of any 

listed substance “into water,” and reading “waters of the 

United States” as merely jurisdictional. In other words, the 

majority concludes that discharging into “waters of the 

United States” does not “describe the evil Congress [sought] 

to prevent” in enacting the discharge prohibition, “but 

instead simply ensure[s] that the Federal Government has the 

constitutional authority to regulate the defendant’s conduct.” 

Rehaif v. United States, 139 S. Ct. 2191, 2196 (2019) 

(internal quotation marks and citation omitted).
UNITED STATES V. LUCERO 35

Because purely “jurisdictional elements normally have 

nothing to do with the wrongfulness of the defendant’s 

conduct, such elements are not subject to the presumption in 

favor of scienter.” Id. (citation omitted). Therefore, the 

majority concludes that the discharge prohibition’s 

knowledge requirement does not apply to “waters of the 

United States,” and thus a defendant need not know that the 

water into which he discharged a listed substance fell within 

the category of “waters of the United States” to be guilty of 

a felony.2 Maj. Op. 11–17.

Certainly, this approach gives distinct meaning to each 

prepositional phrase: “into water” and “to the waters of the 

United States.” But it does so at the cost of broadening the 

discharge prohibition into an absurdity, while at the same 

time failing to address situations where, as alleged here, a 

defendant dumps waste on dry land that nonetheless falls 

within the regulatory definition of “waters of the United 

States.” Moreover, the chief justification for the majority’s 

reading—the rule against surplusage—carries little weight 

when applied to the broader statutory structure, which 

applies multiple definitional provisions in the discharge 

prohibition.

2 This case, however, differs from Rehaif, in which the Supreme 

Court explained that the “into or affecting commerce” element of 

18 U.S.C. § 922(g), a statute prohibiting illegal aliens from possessing 

firearms, does not substantively add to the definition of the offense, but 

“simply ensures that the Federal government has the constitutional 

authority to regulate” the conduct in question. 139 S. Ct. at 2196 

(citation omitted). Whether an illegal alien’s possession of a firearm 

involves interstate commerce has no bearing on the “evil” the statute 

“seeks to prevent”—that is, illegal aliens possessing firearms. Id. But 

here, the question of what water one discharges a “pollutant” into has 

everything “to do with the wrongfulness”—or innocence—of that 

conduct. See id.
36 UNITED STATES V. LUCERO

II.

In the majority’s view, the discharge prohibition covers 

the addition of any “pollutant” “into water,” while the 

“waters of the United States” element merely demarcates 

federal authority to enforce that prohibition. Maj. Op. 13–

14. But if the discharge prohibition bans any act of adding a 

pollutant into water—regardless of what water—then it is 

absurdly overbroad.

The CWA defines a “pollutant” as “dredged spoil, solid 

waste, incinerator residue, sewage, garbage, sewage sludge, 

munitions, chemical wastes, biological materials, 

radioactive materials, heat, wrecked or discarded equipment, 

rock, sand, cellar dirt and industrial, municipal, and 

agricultural waste discharged into water.” 33 U.S.C. 

§ 1362(6). If we simply apply this definition without also 

considering the substantive limitation that a prohibited 

discharge requires the addition of a pollutant to “the waters 

of the United States,” id. § 1362(7), (12), then the discharge 

prohibition would stretch far beyond any reasonable notion 

of water pollution.

Under the majority’s interpretation, the discharge 

prohibition could cover all sorts of innocent acts: heating a 

tea kettle (“heat . . . discharged into water,” § 1362(6)), 

using the restroom (“solid waste . . . discharged into water,” 

id.), skipping a rock across a pond (“rock . . . discharged into 

water,” id.), and even diving into a lake (“biological 

materials . . . discharged into water,” id.).3 Lumping such 

3 The discharge prohibition only applies to additions of pollutants 

“from any point source.” 33 U.S.C. § 1362(12). The majority interprets 

the “point source” element to ensure that “the ‘water’ involved be an 

equivalent to a body of water” for the discharge prohibition to apply. 
UNITED STATES V. LUCERO 37

innocuous acts together as part of “the evil Congress 

[sought] to prevent” in enacting the CWA, Rehaif, 139 S. Ct. 

at 2196 (internal quotation marks and citation omitted), 

would be absurd.

Of course, “the absurdity canon isn’t a license for us to 

disregard statutory text where it conflicts with our policy 

preferences.” In re Hokulani Square, Inc., 776 F.3d 1083, 

1088 (9th Cir. 2015); see Pub. Citizen v. U.S. Dep’t of Just., 

491 U.S. 440, 470–71 (1989) (Kennedy, J., concurring in the 

judgment) (“This exception remains a legitimate tool of the 

Judiciary, however, only as long as the Court acts with selfdiscipline by limiting the exception to situations where the 

result of applying the plain language would be, in a genuine 

sense, absurd, i.e., where it is quite impossible that Congress 

could have intended the result, and where the alleged 

absurdity is so clear as to be obvious to most anyone.” 

(citation omitted)). As the Supreme Court has explained, a 

court should reject a reading of a statute as absurd only when 

it is “unreasonable to believe” that the legislature intended a 

result that follows from that reading. Holy Trinity Church v. 

United States, 143 U.S. 457, 459 (1892). Thus, for example, 

Maj. Op. 19. But nothing in the definition of “point source” seems to 

limit the meaning of “water” or foreclose such a broad application of the 

discharge prohibition. See § 1362(14) (“The term ‘point source’ means 

any discernible, confined and discrete conveyance, including but not 

limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, 

container, rolling stock, concentrated animal feeding operation, or vessel 

or other floating craft, from which pollutants are or may be 

discharged.”); see also S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of 

Indians, 541 U.S. 95, 105 (2004) (“[A] point source need not be the 

original source of the pollutant; it need only convey the pollutant to 

‘navigable waters,’ which are, in turn, defined as ‘the waters of the 

United States.’ Tellingly, the examples of ‘point sources’ listed by the 

Act include pipes, ditches, tunnels, and conduits, objects that do not 

themselves generate pollutants but merely transport them.”).
38 UNITED STATES V. LUCERO

a law “that whoever drew blood in the streets should be 

punished with the utmost severity did not extend to the 

surgeon who opened the vein of a person that fell down in 

the street in a fit.” Id. at 461 (internal quotation marks and 

citation omitted).4

The majority’s interpretation of the discharge 

prohibition satisfies the high standard for absurdity. The 

necessary implication of the majority’s reading—that 

Congress’s limited authority under the Commerce Clause is 

the only barrier to criminally prosecuting every American’s 

daily use of indoor plumbing—“makes it unreasonable to 

believe” that Congress intended “waters of the United 

States” solely as a jurisdictional element that does not 

substantively modify the discharge prohibition. Id. at 459. 

The majority’s observation that Congress intended the CWA 

to be “an all-encompassing program of water pollution 

regulation,” Milwaukee v. Illinois, 451 U.S. 304, 318 (1981), 

and to “protect water in the United States as expansively as 

possible,” Maj. Op. 14, does not make its conclusion—that 

4 The majority misses the point when it criticizes Holy Trinity’s 

holding as a “triumph of supposed ‘legislative intent’ (a handy cover for 

judicial intent) over the text of the law,” Maj. Op. 19 n.8 (quoting 

Antonin Scalia, A Matter of Interpretation 18 (1997)). While Holy 

Trinity may have relied on extratextual inferences about legislative intent 

to justify its holding (that a statute banning “the importation and 

migration of foreigners and aliens under contract to perform labor or 

service of any kind in the United States” did not apply to an English 

church rector, 143 U.S. at 511 (citation omitted)), I cite it here only for 

its canonical description––often repeated in subsequent case law––of the 

absurdity doctrine. See, e.g., K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 

324 n.2 (1988) (Scalia, J., concurring in part) (citing the example of the 

law against drawing blood in the streets to illustrate the “venerable 

principle that a law will not be interpreted to produce absurd results”).
UNITED STATES V. LUCERO 39

the CWA “broadly proscrib[es] the dumping of pollutants 

‘into’ any ‘water,’” id. at 4—any less absurd.

The majority also attempts to justify its interpretation of 

the discharge prohibition by observing that “[v]irtually all 

water . . . eventually makes its way to navigable water.” 

Maj. Op. 15 (quoting Cnty. of Maui v. Haw. Wildlife Fund, 

140 S. Ct. 1462, 1470 (2020)). But the Supreme Court 

recognized limits to this broad approach in Hawaii Wildlife 

Fund when it concluded that “Congress did not intend the 

[CWA’s] point source-permitting requirement to provide 

EPA with such broad authority as” this sort of “focus on 

traceability would allow.” 140 S. Ct. at 1471. It reasoned, 

in part, that if the CWA’s regulatory reach were coextensive 

with “the power of modern science” to trace water to a point 

source, this “would require a permit in surprising, even 

bizarre, circumstances, such as for pollutants carried to 

navigable waters on a bird’s feathers, or, to mention more 

mundane instances, the 100-year migration of pollutants 

through 250 miles of groundwater to a river.” Id. at 1470–

71. Similarly, here, regulating “[v]irtually all water” use 

based on the power of modern science to trace any water to 

navigable water, however geographically or temporally 

remote the connection, results in “bizarre” applications of 

the CWA that render that approach untenable. See id.

We avoid these problems if we acknowledge that the 

statute’s reference to “waters of the United States” does not 

merely delineate the government’s jurisdiction to enforce the 

discharge prohibition, but that it also plays a role in defining 

the prohibition itself. Accordingly, the discharge prohibition 

does not universally proscribe all discharges “into water,” 

but rather, applies only to such discharges “to waters of the 

United States.” 33 U.S.C. § 1362(6), (7).
40 UNITED STATES V. LUCERO

Congress has delegated responsibility for determining 

the specific contours of “waters of the United States” to the 

Environmental Protection Agency and the Army Corps of 

Engineers, see Rapanos v. United States, 547 U.S. 715, 722–

29 (2006) (plurality opinion), and those agencies’ definition 

of the term, set forth at 33 C.F.R. § 328.3, plainly does more 

than merely identify the outer bounds of federal authority 

under the Commerce Clause. It distinguishes between 

harmful and innocent conduct and thus avoids prohibiting 

many activities that would otherwise fall within a blanket 

prohibition on discharging any pollutant “into water.” See, 

e.g., 33 C.F.R. § 328.3(a) (2014) (defining “waters of the 

United States” as territorial seas and waters used or 

susceptible to use in interstate commerce, including waters 

subject to tides; tributaries; lakes, ponds, and impoundments 

of jurisdictional waters; and adjacent wetlands); see also id.

§ 328.3(b) (categorically excluding certain waters, including 

“[p]rior converted cropland” and “[w]aste treatment 

systems”).5 Thus, for example, the definition of “waters of 

the United States” makes clear that the discharge prohibition 

is not violated by heating a tea kettle or using the restroom 

because the water in these examples does not fall within, or 

is excluded from, the categories of water that the regulation 

identifies. See id. § 328.3(a).6

5 The current version of the regulation also includes categorical 

exceptions, for example, for “[g]roundwater, including groundwater 

drained through subsurface drainage systems,” “[p]rior converted 

cropland,” and “[w]aste treatment systems.” 33 C.F.R. § 328.3(b) 

(2020).

6 As the majority observes, Maj. Op. 17 n.7, the agencies have 

referred to “waters of the United States” as “jurisdictional waters.” See 

33 C.F.R. § 328.3(a) (2020); Clean Water Rule: Definition of “Waters 

of the United States”, 80 Fed. Reg. 37054-01, 37057 (June 29, 2015). 
UNITED STATES V. LUCERO 41

III.

Moreover, the majority’s interpretation of the discharge 

prohibition as criminalizing all discharges “into water” is not 

only absurdly overbroad, but also underinclusive because it 

fails to address situations in which “dry land might be treated 

as ‘navigable waters’ under the Clean Water Act.” Maj. 

Op. 4. Neither the statute nor any relevant regulation defines 

the terms “into water” or “water.” Instead, the statute relies 

on the term “waters of the United States,” and the regulatory 

definitions of that term, to define its reach. See Nat’l Ass’n 

of Mfrs. v. Dep’t of Def., 138 S. Ct. 617, 625 (2018) (“The 

statutory term ‘waters of the United States’ delineates the 

geographic reach of many of the Act’s substantive 

provisions . . . .” (citations omitted)); see also Rapanos, 

547 U.S. at 722–29 (summarizing the evolving 

interpretations of “waters of the United States” that have 

allowed “the immense expansion of federal regulation of 

land use that has occurred under the Clean Water Act”).

If the term “waters of the United States” is solely 

jurisdictional and not a substantive element of a violation of 

§ 1311(a), then we would be left to interpret the substantive 

discharge prohibition based on the plain meaning of “water,” 

which would certainly not cover discharges into arroyos, 

areas adjacent to water, or other dry areas. See Water, 

But no regulation states that the category is solely jurisdictional. 

Moreover, it appears that the agencies are using the term “jurisdictional” 

not in the sense of Congress’s constitutional authority to legislate, see 

Torres, 136 S. Ct. at 1624, but rather to describe their own “statutory 

authority (that is, [their] jurisdiction),” City of Arlington v. F.C.C., 

569 U.S. 290, 296–97 (2013), that Congress has delegated them to 

enforce the CWA. See 33 C.F.R. § 328.1 (“This section defines the term 

‘waters of the United States’ as it applies to the jurisdictional limits of 

the authority of the Corps of Engineers under the Clean Water Act.”).
42 UNITED STATES V. LUCERO

Oxford English Dictionary (3d ed. 2015) (“The substance 

(most commonly encountered as a liquid) which is the 

principal constituent of seas, lakes, and rivers, and which 

falls as rain and other forms of precipitation.”). If “waters 

of the United States” were a purely jurisdictional element, 

whose “purpose” was “to limit the reach of [the] statute,” 

United States v. Alderman, 565 F.3d 641, 647 (9th Cir. 2009) 

(emphasis added) (citation omitted), it could not expand the 

CWA’s reach to areas the substantive prohibition fails to 

cover. Thus, “waters of the United States” substantively 

defines the discharge prohibition not only by ensuring it does 

not reach harmless, everyday conduct involving water; it 

also ensures the CWA does reach cases of bona fide water 

pollution when a polluter does not dump directly into water.7

In responding to this point, the majority in fact confirms 

it. While it correctly observes that the Supreme Court has 

recognized that it would be “simplistic” to limit the CWA’s 

reach to “hydrographic features more conventionally 

identifiable as ‘waters,’” United States v. Riverside Bayview 

Homes, Inc., 474 U.S. 121, 131–32 (1985), neither the Court 

nor the agencies has ever relied on “into water” to extend the 

CWA’s reach beyond conventional water. When the 

Supreme Court construed the term “waters” (not “water”) in 

Riverside Bayview Homes, it did so only in analyzing 

whether that word, as it appeared in “waters of the United 

States,” limited the government’s power to regulate 

discharges. Id. at 132. Given the virtually exclusive role of 

7 The majority suggests that “[t]he government has the greatest 

interest in ensuring the ability to prosecute cases under the CWA and it 

does not share [this] concern.” Maj. Op. 21 n.10. But it is not clear how 

the government’s unstated views of its own interests could bear on our 

task here: to determine from the language of the statute how Congress 

intended “waters of the United States” to function in the discharge 

prohibition.
UNITED STATES V. LUCERO 43

the “waters of the United States” element as the CWA’s 

vehicle for determining the reach of the discharge 

prohibition, it is clear that it substantively defines the 

prohibition.

IV.

Nonetheless, if the phrase “to waters of the United 

States” plays a role in defining the substantive prohibition, 

then the phrase “into water” appears to be redundant and 

unnecessary—at least in the discharge prohibition. And this 

redundancy is in tension with the rule against surplusage, 

which states that “[i]f possible, every word and every 

provision is to be given effect” in our construction of a 

statute. See A. Scalia & B. Garner, Reading Law: The 

Interpretation of Legal Texts 174 (2012). But the 

“preference for avoiding surplusage constructions is not 

absolute.” Lamie v. U.S. Tr., 540 U.S. 526, 536 (2004) 

(citation omitted).

Here, the rule against surplusage carries little weight 

because, even under Lucero’s reading, “into water” is not

entirely superfluous. Granted, it functions superfluously in 

this particular application, where a single substantive 

provision, 33 U.S.C. § 1311(a), incorporates overlapping 

definitional provisions that include similar prepositional 

phrases. But although the phrase “into water” in the 

definition of “pollutant,” id. § 1362(6), is redundant when 

combined with the phrase “to waters of the United States” in 

the definition of “discharge of a pollutant,” id. § 1362(7), 

(12), it performs a non-redundant role in other statutory 

provisions that reference “pollutant” but not “discharge.” 

See 33 U.S.C. § 1252(c)(2)(B) (referring to the “collection, 

storage, treatment, and elimination of pollutants”); 

33 U.S.C. § 1258(a) (discussing “removal of pollutants and 

prevention of any polluting matter”).
44 UNITED STATES V. LUCERO

Unlike situations in which a court interprets a single 

statutory provision as containing a redundancy, thus actually 

“render[ing]” some of the provision’s language “a nullity,” 

In re Cervantes, 219 F.3d 955, 961 (9th Cir. 2000) (citations 

omitted), the rule against surplusage is not dispositive here 

because Lucero’s proposed reading does not truly render 

meaningless any words that Congress enacted. Instead, it 

merely results in an “as-applied” redundancy. While this 

redundancy stands in some tension with the rule against 

surplusage, it is fundamentally consistent with that rule’s 

teaching that “a statute ought, upon the whole, to be so 

construed that, if it can be prevented, no clause is rendered 

superfluous, void, or insignificant.” Young v. United Parcel 

Serv., Inc., 135 S. Ct. 1338, 1352 (2015) (emphasis added) 

(internal quotation marks and citation omitted).

Indeed, the rule against surplusage “cannot always be 

dispositive because . . . the underlying proposition is not 

invariably true. Sometimes drafters do repeat themselves 

and do include words that add nothing of substance . . . .” 

Scalia & Garner at 176. Such repetition is particularly 

understandable when two definitions, in this case “pollutant” 

and “discharge,” apply to a range of substantive provisions 

and thus lead to redundancies when both are applied in a 

single provision.

V.

The majority gives short shrift to these considerations 

when it rejects Lucero’s reading of the discharge prohibition. 

It proclaims that “we have no roving license to disregard 

statutory text to make our jobs easier in interpreting it.” Maj. 

Op. 12 (quotation marks and citation omitted). While this 

statement is correct, it is misplaced here. Lucero has not 

asked us to disregard the statute’s language in favor of some 

extratextual consideration. See Scalia & Garner at 235 
UNITED STATES V. LUCERO 45

(“What the rule of absurdity seeks to do is what all rules of 

interpretation seek to do: make sense of the text.”). Rather, 

he asks us to adopt one of two readings of a convoluted 

statute whose language forces us to choose either an absurd 

implication or an incidental redundancy.

To be sure, I do not easily conclude that any words in a 

statute are superfluous to its meaning. But under the 

circumstances here, which require “knitting together the 

various statutory provisions,” Pozsgai, 999 F.2d at 726, I 

agree with Lucero that the statute’s text favors such a 

reading. See Amoco Prod. Co. v. Watson, 410 F.3d 722, 734 

(D.C. Cir. 2005) (“No canon of construction justifies 

construing the actual statutory language beyond what the 

terms can reasonably bear.” (citation omitted)). The 

majority, seeking in good faith to apply the statute’s 

language, has reached a different conclusion. But it is 

mistaken when it suggests that the competing interpretation 

is simply the result of “disregard[ing] statutory text,” Maj. 

Op. at 12, or an attempt to “improve upon” the statute 

Congress drafted, id. at 12 (quoting Pavelic & LeFlore v. 

Marvel Ent. Grp., Div. of Cadence Indus. Corp., 493 U.S. 

120, 126 (1989)).

The majority also misunderstands my approach, which it 

characterizes as “myopically focus[ed] on a single . . .

phrase” to the exclusion of its broader context in the CWA. 

Maj. Op. 18. To the contrary, I read “waters of the United 

States” as substantively defining the discharge prohibition 

precisely because of its role in the broader statutory context. 

To summarize, I conclude that the “waters of the United 

States” element substantively defines the discharge 

prohibition because it plays an integral role in “defin[ing] the 

evil Congress seeks to prevent” through the CWA, no other 

statutory or regulatory provision can plausibly substitute for 
46 UNITED STATES V. LUCERO

it in this role, and the majority’s chief reason not to read both 

“waters of the United States” and “into water” 

substantively—the rule against surplusage—is 

unconvincing given the use of the definitional provisions 

across the CWA.

Although the phrase “to waters of the United States” 

functions partly as a jurisdictional element, tying “the 

substantive offense . . . to one of Congress’s constitutional 

powers . . . , thus spelling out the warrant for Congress to 

legislate,” Torres v. Lynch, 136 S. Ct. 1619, 1624 (2016), 

this is not the only role it plays. It is also the only element 

in the discharge prohibition that allows us to distinguish 

between entirely innocent conduct and criminal conduct. 

Therefore, it is subject to “the presumption . . . that 

‘Congress intends to require a defendant to possess a 

culpable mental state regarding each of the statutory 

elements that criminalize otherwise innocent conduct.’” 

United States v. Collazo, 982 F.3d 596, 611 (9th Cir. 2020) 

(quoting Rehaif, 139 S. Ct. at 2195).

VI.

For these reasons, I respectfully dissent from the 

majority’s holding that the discharge prohibition’s mens rea 

requirement does not apply to the “waters of the United 

States” element. The majority concludes that the 

government must “prove only that a defendant knew he 

discharged a substance ‘into water.’” Maj. Op. 17. In 

contrast, I would vacate the conviction and remand for 

further proceedings because the jury instructions did not 

require the jury to find that Lucero knowingly discharged a 

pollutant into “waters of the United States,” as defined by 

the CWA and the relevant regulations.