Under the public welfare doctrine, certain regulatory crimes require no showing of the traditional mens rea, or "guilty mind," as a predicate to criminal liability. The doctrine has been used to relax intent requirements in criminal statutes when the public welfare is at stake and is predicated upon the fact that the defendant had notice that the dangerous activity is regulated. A majority of courts place the criminal provisions of the Clean Water Act (CWA) within the public welfare doctrine. In theory, therefore, prosecutors need not prove that a defendant acted with the requisite intent with respect to each element of the underlying statutory offense in order to convict.

The complexity of environmental statutes and the potential consequences of violating these laws have lead criminal defense attorneys to argue that the government should be required to prove that a defendant was aware of the illegality of his conduct. Such "green-collar" criminals would, in essence, claim ignorance of the law as a defense, an option generally denied persons accused of nonregulatory crimes, where "ignorance of the law is no defense." Courts are currently struggling with whether environmental criminal defendants should be segregated from other criminal defendants in such a manner.

The applicability of the public welfare doctrine to the criminal provisions of the CWA has not been clearly established by the courts. Regulatory ambiguity clouds the implementation of §404 of the CWA, the section permitting the otherwise prohibited discharge of dredge or fill material into a wetlands. The U.S. Army Corps of Engineers' (the Corps') jurisdiction over isolated wetlands was severely curtailed by the U.S. Supreme Court in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, and the Corps' "Tulloch rule" was recently overturned by the U.S. Court of Appeals for the District of Columbia (D.C.) Circuit. Questions of fairness have arisen regarding the application of the public welfare doctrine when great uncertainty surrounds the authority of the Corps to regulate the activity.

The first section of this Article discusses the public welfare doctrine's origins and what it means in environmental regulation. The second addresses how the public welfare doctrine intersects with the CWA. The current state of wetlands regulation is described, including the confusion in the courts surrounding the jurisdiction of the Corps. Finally, the current state of the law is described and options to clarify this area of law are proposed.