ELR Citation: ELR 21282
No(s). 91-5032 (4th Cir. Apr 2, 1992)

The court upholds the conviction and six-month prison sentence of an environmental engineer who knowingly filled wetlands without the required Federal Water Pollution Control Act (FWPCA) §404 permit. The court first holds that the 1989 Federal Manual for Identifying and Delineating Jurisdictional Wetlands (1989 Manual) is an interpretive rule, not a legislative rule, and is therefore not a law within the meaning of the Ex Post Facto Clause of the U.S. Constitution. The trial court did not err in admitting testimony based on this conclusion in the 1989 Manual that described that certain areas were wetlands. The court next holds that the conviction did not violate due process, because the engineer had fair warning that his actions were subject to FWPCA criminal penalties. The jury found that the engineer had fair warning that the areas in question were wetlands, and if the engineer knew that the areas were wetlands, then the criminal nature of his conduct was foreseeable. The court also holds that the trial court properly applied the Sentencing Guidelines in setting the engineer's offense level. The offense of filling wetlands without a permit is serious, and upward penalty adjustments for discharge without a permit and for ongoing, continuous, or repetitive discharge both apply in this case. Moreover, an upward penalty adjustment for use of a special skill to facilitate an offense is not applicable, because the engineer's special skills did not facilitate his particular offenses.

Counsel for Plaintiff-Appellant
Jane F. Barrett, Ass't U.S. Attorney
U.S. Attorney's Office
820 U.S. Court House, 101 W. Lombard St., Baltimore MD 21201
(410) 962-4822

Counsel for Defendant-Appellee
Benjamin S. Sharp
Perkins Coie
607 14th St. NW, Washington DC 20005
(202) 628-6600

Wilkinson, J. (before Ervin and Russell, JJ.):