(concurring) .
I concur in the views expressed in the first two sections of the majority’s opinion. I am unable, however, to subscribe to the views stated in the third section of that opinion.
In United States v. Standard Oil Co., 384 U.S. 224, 230, 86 S.Ct. 1427, 1430, 16 L.Ed.2d 492 (1966) the Supreme Court of the United States concluded that “the word ‘refuse’ [as used in Section 13 of the Rivers and Harbors Act] includes all foreign substances and pollutants and sewers and passing therefrom in a apart from those ‘flowing from streets liquid state’ into the watercourse.” In United States v. Esso Standard Oil Co. of Puerto Rico, 375 F.2d 621 (3rd Cir. 1967), this Court followed suit by upholding a conviction under Section 13 in a case where there was no evidence that the discharge might adversely affect navigation. I find it difficult to assign to these pronouncements the limited significance given them in the third section of the majority’s opinion.
As I read this portion of the majority’s opinion, it holds that despite the pronouncements of the courts in these cases, PICCO may successfully assert a defense that it was affirmatively misled by the regulations of the Corps of Engineers into believing that Section 13 did not apply to discharges which would not adversely affect navigation. While I agree that the Due Process Clause may require a court to recognize the defense suggested by Section 609 of the proposed Federal Criminal Code'and may encompass a theory of estoppel even in criminal cases,1 I do not believe that a citizen may reasonably rely on a statement in an administrative regulation when the judicial branch of the government has clearly declared the contrary.
. See Note, Applying Estoppel Principles in Criminal Cases, 78 Yale L.J. 1046 (1969). nation.