Twenty years ago, a dangerous legal decision was issued by the 9th Circuit Court of Appeals in San Francisco in U.S. v. Weitzenhoff where the Environmental Protection Agency sent two employees of a sewage treatment plant on the Hawaiian island of Oahu to jail for almost three years. 1 F.3d 1523 (9th Cir. 1993) Until this case, federal prosecutors had to prove the defendant knew he was violating the law. No more. If you know of a water discharge from your property or it is a negligent discharge you can face criminal prosecution by EPA! This radical court decision now haunts America's farmers.

This month, using this decision EPA issued a "Criminal Enforcement Alert" in ominous terms. Every farmer with livestock and poultry operations should read the document or face the risk of an EPA criminal enforcement action. The alert is subtitled "EPA Targets Clean Water Act Crimes – Illegal Pollution by Animal Confinement Operations Punished by Fines and Incarceration." (Livestock production a criminal enterprise – simply amazing!)

EPA describes a national enforcement initiative aimed at "reducing animal waste pollution from livestock and poultry operations that impair our nation's waters, threaten drinking water sources, and adversely impact vulnerable communities by illegally discharging manure, litter, or process waste water into waters of the United States."

The alert puts producers on notice that if a "knowing" or "negligent discharge" of manure or litter occurs into water, EPA reserves the right to bring a criminal action. The dangerous aspect of this alert is the language that says "owners or operators of animal confinement operations can be criminally prosecuted…if they knowingly or negligently discharge pollutants from a point source such as lagoons, tanks, pipes, or other conveyances into waters of the U.S…" (No criminal intent needed because of the Weitzenhoff decision.)

I wrote about a number of farmers being prosecuted by EPA's criminal arm on July 15, 2011. According to EPA, regardless of the size of any animal confinement operation if there is no CWA permit and you have a discharge, EPA claims you face potential criminal liability.

EPA proudly lists in its alert the number of farmers who have been sent to jail, paid fines, or placed on probation.

The Weitzenhoff case allows EPA dangerous and unfettered discretion to bring criminal actions against farmers because a U.S. District Court judge in Hawaii would not allow a jury instruction for Mr. Weitzenhoff. Under the CWA, he argued that his knowing about a discharge did not mean that he was knowingly violating the Clean Water Act and discharging without a permit. In plain English, the court overturned centuries of common law when it refused to instruct the jury on the defendant's proposed affirmative defense that he did not know their actions violated a Clean Water Act Permit. He had no criminal intent to violate the CWA or evil intent.

The 9th Circuit's decision was followed by the 2nd Circuit in New York. It also found under the CWA, federal prosecutors were not required to prove criminal or evil intent on the part of the defendants. The prosecution is not required to prove a defendant knew his actions violated CWA. At the time, legal publications termed this action by the 9th and 2nd Circuit Courts as "radical judicial action".

In criminal law there must be requisite mental state. Generally this means knowingly violating the law. The Weitzenhoff case says all EPA has to prove is that you knowingly discharged pollutants or even negligently discharged pollutants and that is sufficient for EPA to indict a livestock producer.

This leads to an incredible radicalization of the law which no one in agriculture has challenged. It means EPA, under the CWA, must prove negligence to convict a farmer for a misdemeanor, but can convict a person for a felony for merely knowing he is discharging pollutants into a water of the U.S.

It does not take a rocket scientist to conclude that it is a small step from this theory to charging all of us who grow crops as knowing that we have pollutants running off our farm fields that include nutrients, pesticides and silt. EPA has done everything possible to limit EPA's storm water exemption which protects agriculture.

The 9th and 2nd Circuit decisions are considered radical by removing the criminal intent requirement from criminal statutes and law review articles have suggested judicial restraint be applied by courts when EPA uses its criminal power. Not only should the courts rein in these radical decisions, but Congress needs to rein in the EPA using its unfettered power against livestock producers.