concurring and dissenting
I agree with most of the government's argument. Regarding the Clean Water Act charges, I cannot. It is true, of course, that "wrecked or discarded equipment" is a listed "pollutant" under 33 U.S.C. § 1362(6). Webster's, however, defines "equipment" as "the set of articles or physical resources serving to equip a person or thing ... ." Webster's Ninth New Collegiate Dictionary 421 (1988). I do not think these parts of the Witconcrete II — which in better times were an integral part of its hull — can properly bethought of as part of the ship's equipment. They were not mere appurtenances, like a loading crane or radar antenna dumped over the side. I believe they were a part of the ship itself.
That aside, however, there still was no "point source" within the meaning of the Act. The Clean Water Act prohibits discharging pollutants into the navigable waters of the United States without a permit; however, it regulates discharges only from "point sources." *607See 33 U.S.C. §§ 1311(a), 1362(12). Appellants argue that they cannot be criminally culpable because as a matter of law the discharges above did not emanate from point sources. Under 33 U.S.C. § 1362(14), "point source" is defined as follows:
"any discernable, 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."
Appellants rely on United States v. Plaza Health Laboratories, Inc., 3 F.3d 643 (2d Cir. 1993). There, the defendant owned a medical testing laboratory. Fie loaded vials of blood into his car and dumped them into the Hudson River. He was indicted under the Clean Water Act. The Court of Appeals, however, ruled that defendant, as an individual dumping waste directly into a body of water, was not a "point source" within the meaning of the Act and reversed his conviction.
After first observing that "this statute was never designed to address the random, individual polluter," id. at 646, the Plaza Health Court looked to the language and structure of the Act and concluded that the listed items in the statute "evoke[d] images of physical structures and instrumentalities that systematically act as a means of conveying pollutants from an industrial source to navigable waterways." Id. It then reasoned that an interpretation of the statutory text that brought every act of "discharge involving humans" within the ambit of the term "pointsource" would make that text redundant, id. at 646-47, and thus contrary to long-established principles of statutory construction.
The Court next turned to the legislative history of the Act and found no congressional intent "to impose criminal liability on an individual for the myriad, random acts of human waste disposal, for example, a passerby who flings a candy wrapper into the Hudson River, or a urinating swimmer." Id. at 647. Moreover, it found no such expansive interpretation of .the Act in the criminal case law, although it noted that courts dealing with this issue in the context of civil penalties have construed the statute more broadly. *608Id. at 648. Finally, the Plaza Health Court found no evidence of any administrative interpretation by the EPA that would bring the defendant's conduct within the statute. Id. at 649.
Based on these observations, the Court then concluded "that the term 'point source' as applied to a human beings at best ambiguous." Id. Applying the rule of lenity, it held that the prosecution must be dismissed. Id.
The government relies, however, on United States v. M.C.C., Inc., 772 F.2d 1501 (11th Cir. 1985), in which a contractor building a bridge in the Florida Keys departed from the approved plan and brought construction assemblies in by barge. Unfortunately, the tug's screws stirred up sand from the bottom of a shallow body of water and redeposited it on nearby grass beds, damaging them. The M.C.C. court held that material already in the water, when redeposited, could constitute a discharge under the Clean Water Act. Id. at 1506. Without dwelling on the issue, the court concluded that because "vessel" was included in the statutory list of possible point sources, the tug's screws were a point source under the facts of that case. Id. at 1505-06.
It is evident to me that when Congress used the term "point source," it had in mind something other than the propulsion system of every ship that happens to operate in navigable waters. I would thus conclude that a point source is the conduit, conveyance or vector by which pollutants are discharged, and not the screws of a vessel stirring up old pollutants without discharging anything at all.
I would not follow M.C.C. for another reason: there, the government sought only civil penalties. Here, we are reviewing a felony conviction, and must apply different maxims of statutory construction. Remedial statutes are typically construed broadly to effectuate the legislative purpose behind them. Criminal statutes are construed more narrowly to give defendants fair warning of the conduct the legislature intended to penalize. I conclude that Plaza Health fits our case particularly well, and would adopt its holding.
I would also conclude that the error here was plain. In United States v. Olano, 507 U.S. 725, 113 S. Ct. 1770(1993), the Supreme Court clarified the standard that courts of appeals must employ when deciding whether a forfeited error warrants reversal under *609Fed. R. Crim. P. 52(b). First, of course, there must be an error that has not been knowingly and intentionally waived. Id. at 732-33, 113 S. Ct. at 1777. Second, the error must be plain; that is, clear or obvious under current law. Id. at 734, 113 S. Ct. 1777. Third, the plain error must have affected substantial rights, generally by affecting the outcome of the district court proceedings. Id. at 734, 113 S. Ct. at 1777-78.Finally, once this threshold has been crossed, the reviewing court must exercise its discretion, correcting the error if it "seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings," Id. at 736, 113 S. Ct. at 1779 (quoting United States v. Atkinson, 297 U.S. 157, 160,56 S. Ct. 391, 392 (1936)), as when the error caused the conviction of an "actually innocent defendant." Id. at 736, 113 S. Ct. at 1779.
Turning to this case, the Clean Water Act proscribes only "the discharge of any pollutant," 33 U.S.C. § 1311(a), which in turn is defined as "any addition of any pollutant . . .from any point source . . . ." 33 U.S.C. § 1362(12). It is evident that the requirement that the discharge emanate from a point source is an essential element of the crime.
We have held recently that "[t]he omission of an essential element of an offense from the jury instructions usually will be obvious error, and therefore ordinarily satisfies the first and second requirements of Olano." United States v. Stansfield, 101 F.3d 909, 920 (3d Cir. 1996) (citation omitted); accord United States v. Zolicoffer, 869 F.2d 771,774 (3d Cir. 1989) ("the failure to prove one of the essential elements of a crime is the type of fundamental error which may be noticed by an appellate court notwithstanding the defendant's failure to raise it in the district court"). Thus, I conclude that to the extent appellants' Clean Water Act convictions rested on the erroneous conclusion that the discharges came from point sources, the error was "plain."1
*610I likewise have no difficulty concluding that the error involved appellants' substantial rights and seriously undermined the fairness, integrity and reputation of the judicial proceedings. If the discharges did not emanate from a point source, an issue to which I shall turn shortly, then appellants could not, as a matter of law, have been convicted of Clean Water Act violations, and are "actually innocent" of the offense. Such a conviction would be classic miscarriage of justice. Accordingly, to the extent there was error, we have the power to correct it and I would exercise our discretion to do so.
I believe that neither the discharge of the Witconcrete II's stern nor its protruding rebar qualifies as a point source within the meaning of the Clean Water Act. The severing of the stern was not a discharge from a vessel, as required by 33 U.S.C. § 1362(14). Rather, a part of the vessel itself was discharged. Appellants merely severed a wrecked, useless portion of the Witconcrete II to extricate a serviceable forward portion of it. This was a salvage operation, not a discharge of concrete and rebar through the instrumentality of the barge.
Likewise, the severed rebar was not discharged through the "conveyance" of the barge, see 33 U.S.C. § 1362(14), it was part of the barge itself. Put another way, I think these two discharges are closer to the intermittent, manual blood dumping of Plaza Health than they are to the industrial paradigm of the sewage treatment plant, oil refinery or steel mill that animates most Clean Water Act cases.2 I would accordingly reverse appellants' convictions at counts one and two.
I also disagree with the government's argument concerning the Rivers and Harbors Act. I rely again on the language of the statute, 33 U.S.C. § 403,.under which it is prohibited "to build or commence the building of any wharf, pier ... or other structures." In sum, these barges were placed in their current locations by the hurricane, not by WIT. At most, WIT wired them to the local utilities- and built some walkways to connect them. That may be *611the "use" of an existing structure, but it is not the "build[ing]" of a new one.
In more detail, appellants had a permit to moor four vessels in Krum Bay as docks. When Hurricane Hugo hit the Virgin Islands in 1989, it ran some of these vessels aground and otherwise shifted their positions from those specified in the permits. After the storm, appellants did not move these vessels back to their original positions, but used them where they sat. By November 1992, the permits had expired. In count three of the superseding indictment, the government charged appellants with misdemeanor violations of the Rivers and Harbors Act, 33 U.S.C. § 403, which proscribes creating piers and wharves without a permit. Appellants did not challenge the sufficiency of the evidence to support their convictions in the district court, so again the plain error standard applies.
Under longstanding precedent, prohibiting "build [ing] or commencing] the building of any wharf, pier . . .or other structures" contained in § 403 contemplates "the purposeful creation of something formulated or designed, construction work in the conventional sense." United States v. Bigan, 274 F.2d 729, 732 (3d Cir. 1960) (emphasis added). There, we held that a negligently caused earth slide resulting in an obstruction to a river channel was not a violation of § 403. Likewise, we have held that negligently sinking a vessel in a river channel did not violate the Act. See United States v. Ohio Barge Lines, Inc., 607 F.2d 624, 629 (3d Cir. 1979); accord United States v. Wilson, 235 F.2d 251, 253 (2d Cir. 1956) (a sunken barge may be an "obstruction," but is not a "structure" in violation of § 403).
Here, appellants had every right to moor vessels in Krum Bay, but the hurricane shifted them out of position. Appellants, however, never purposely put the vessels in their current positions and hence never built any structure in violation of the Act. Because, as I have discussed supra, the government utterly failed to adduce evidence supporting an essential element of the crime, I would deem the error plain and exercise our discretion to correct it under Fed. R. Crim. P. 52(b). Accordingly, I would reverse the convictions at count three.
Mv conclusion is not altered by the fact that Pinza Health, a Second Circuit case, was not binding in this circuit at the time of appellants' trial. In United States p. Retos, 25 F.3d 1220, 1230 (3d Cir. 1996), we held that the defendant was entitled, on plain error review, to the benefit of a Supreme Court decision handed down after his trial but before his appeal became final. Here, the law was clear at the time of trial; although not binding in a formal sense, the holding of Plaza Health has not been questioned by any other court facing analogous facts.
The government also argues that the stern and rebar became "wrecked and discarded equipment/' a listed pollutant under § 1362(6), but that begs the question of whether there was a point source, which I conclude there was not.