Enforcement

• Author: Margaret 'Peggy' Strand/Lowell Rothschild
• Pages: 151-181

Page 151

Chapter 6

Enforcement

The enforcement tools for prosecuting wetlands violations are strong and numerous. Far and away

the greatest amount of enforcement relates to lling or a ltering a wet land without a permit. Sec-

tion 404 can be enforced through administrative orders and penalties, civil judicial enforcement

by the government or by citizens, and criminal prosecutions. Both the Corps and EPA possess enforcement

authorities, however, for federal judicial enforcement, they must refer matters to the DOJ.

In most cases, the rst enforcement document a person see s is a Corps cease and desist letter, identify-

ing the violation and directing the landowner to stop. Alternatively, the notice letter may be a notice of

violation from EPA. More formal enforcement steps could follow, such as an administrative complaint. e

CWA authorizes civil penalties of up to $37,500 per day for each violation1 (to be increased quadrennially

in order to account for ination), while criminal sanctions include nes of up to $25,000 per day for each

violation constituting a misdemeanor negligence crime, and nes of up to $250,000 for individuals (up to

$1 million for organizations) convicted of felonies. Incarceration is a lso an available penalty. Many courts

have held that each wetland violation continues to accr ue per day penalties every day the ll remains in

place. e level of penalties and nes has increased in recent years, and wetlands violators have served time

in federal prison. e statute also authoriz es citizen enforcement actions, in which injunctions and civil

penalties may be awarded at the request of private individuals or associations. e CWA imposes strict

liability for violations, which means that the defendant is liable for his or her ac tions regardless of intent.

e prosecutor only has to prove that the defendant committed the prohibited act (the lling), not that the

defendant knew that it was wrong. e government generally enforces not only to punish a violator but also

to obtain injunctive relief to stop a violation, to restore the environment to its pre-violation status, and to

“send a message” that will deter other violations. Although there is considerable exibility in what penal-

ties the government will seek and what a court will order, the objective is generally to restore the physical

environment to a status that replicates the contribution of the wetlands prior to lling.

Remember that the CWA prohibits the act of discharging ll without a permit. e actor who conducts

the illegal lling is the one who commits the violation, although landowners and those directing the illegal

activity have a lso been held liable. Enforcement consequences are personal to the defendant. As a general

matter, a wetlands enforcement order operates against named persons (or organizations) and does not run

with the land. However, the government may le a lien aga inst rea l property as part of its enforcement

action. In addition, recordation of property restrictions may be made part of the perma nent remedy.

Enforcement of the CWA’s violations involving wetlands usually commences after illegal lling is

observed in the eld. Corps or EPA personnel may become aware of violations in the course of other eld-

work or because alert citizens provide information about illegal activities. e Corps encourages citizens to

report wetlands violations.2 In addition, eld personnel from state or local governments and other federa l

agencies, such a s the FWS, NOAA, or the NRCS, may report violations. Where egregious v iolations are

suspected, trained criminal investigators from t he resource agencies or t he Federal Bureau of Investiga-

1. See 33 U.S.C. §1319(d), as modied at 74 Fed. Reg. 31452 (Jan. 7, 2009).

2. See 33 C.F.R. §326.3(a) (2009).

Page 152 Wetlands Deskbook, 4th Edition

tion may participate. Unlike some other provisions of the CWA or provisions in other environmental

statutes, §404 contains no routine reporting or monitoring requirements that might disclose the existence

of violations.

After evaluating the information available about an alleged violation, the federal government can select

among various enforcement options. e government is not obliged to pursue one form of enforcement

before another nor elect among enforcement options. As a matter of policy, however, the federal agencies

try to provide the appropriate persons with a cease and desist order or notice of a violation and, if possible,

attempt to resolve violations without using additional enforcement tools.3

e Corps and EPA entered into an MOA in Januar y 1989 to allocate the enforcement responsibilities

shared by the agencies under the CWA.4 e Enforcement MOA recognizes that the C orps has greater

eld resources than EPA and, thus, will conduct the initial investigation in most cases.5 e investigating

agency makes an initial §404 geographical determination and an initial determination of whether a viola-

tion has occurred. EPA may assume authority for geographical determinations in problem cases or where

it invokes “special case” authority.6

Under the Enforcement MOA, the Corps is the lead enforcement agency for violations of Corps-issued

permits, and EPA is t he lead enforcement agency for violations involving unpermitted d ischarges. EPA is

also the lead agency for special cases. However, if the lead agency declines to enforce, the other agency may

take enforcement actions. e Enforcement MOA establishes working relations between the two agencies

to promote the ecient use of their joint resources. It does not give any rights or defenses to property own-

ers. For example, a violator prosecuted by one agency cannot rely on the Enforcement MOA to argue that

the prosecution should have been brought by the other agency.

I. Some General Enforcement Principles

A. Who May Be Held Liable for Violations?

e CWA is a “zero tolerance” statute.7 Obligations under the CWA apply to “person[s],” a term dened

in the statute to include “an individual, corporation, partnership, association, State, municipality, commis-

sion, or political subdivision of a State, or any interstate body.”8

is general denition applies for purposes of administrative and civil enforcement. For criminal viola-

tions, the term also includes “any responsible corporate ocer.”9 In addition, at least one court has applied

the responsible corporate ocer doctrine to civil enforcement actions.10 Although the Corps’ reg ulations

do not dene “person,” EPA’s §404 regu lations do. Under those regulations, EPA uses the same terms as

the statute, but adds that “person” includes individuals as well as various organiz ations and a n “agent or

employee” of any of the organizations identied within the denition.11

Under these denitions, any person or entity responsible for an unpermitted discharge may be pros-

ecuted for a violation of the CWA.12 is includes the owner of the property,13 a non-owner who discharges

ll onto the property of another, and contractors who are employed to conduct physical work involved in

3. See id. §§326.3(c)–(d).

4. See Memorandum of Agreement Between the Department of the Army and the Environmental Protection Agency Concerning Federal

Enforcement for the Section 404 Program of the Clean Water Act (Jan. 19, 1989), available at http://www.usace.army.mil/Portals/2/docs/

civilworks/mous/enfmoa.pdf (hereinafter Enforcement MOA). Such an MOA was suggested in a recommendation included in the Conference

Report on the Water Quality Act 1987, amending the CWA to authorize administrative penalties.

5. See id. at II.A.

6. See id. at II.B. See also Geographic Jurisdiction, supra Chapter 2 n.16.

7. See United States v. TGR Corp., 171 F.3d 762, 29 ELR 21059 (2d Cir. 1999).

8. 33 U.S.C. §1362(5), ELR S. FWPCA §502(5).

9. Id. §1319(c)(6), §309(c)(6).

10. Stillwater of Crown Point Homeowner’s Ass’n, Inc. v. Kovich, 820 F. Supp. 2d 859, 890–893 (N.D. Ind. 2011).

11. See 40 C.F.R. §232.2 (2008).

12. Obviously, the government must have adequate proof of the illegal activity. See, e.g., United States. v. Huseby, 862 F. Supp. 2d 951 (D. Minn.

2012) (granting summary judgment for an individual where the only evidence of his culpability was a statement by a third party that the

individual had “done some work” in the area where the illegal lling had occurred).

13. See United States v. Bailey, 571 F.3d 791 (8th Cir. 2009), and United States v. Scruggs, 2009 WL 500608 (S.D. Tex. Feb 26, 2009), 69 ERC

1721.