AuthorMargaret 'Peggy' Strand/Lowell Rothschild
Page 117
Chapter 6
e enforcement tools for prosecuting wetlands
violations are strong and numerous. Far and away
the greatest amount of enforcement relates to ll-
ing or altering a wetland without a permit. Section
404 can be enforced through administrative orders
and penalties, civil judicial enforcement by the gov-
ernment or by citizens, and criminal prosecutions.
Both the Corps and EPA possess enforcement
authorities, however, for federa l judicial enforce-
ment, they must refer matters to the U.S. Depart-
ment of Justice (DOJ).
In most cases, the rst enforcement document a
person sees is a Corps cease and desist letter, identi-
fying t he violation and direct ing 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 com-
plaint. 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 sa nctions 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 also an available penalty. Many courts have held
that each wetland violation continues to accrue per-
day penalties each day the ll remains in place. e
level of penalties a nd nes has increased in recent
years, and wetlands violators have served time in
federal prison. e statute a lso authorizes 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
1. See 33 U.S.C. §1319(d), as modied at 74 Fed Reg. 31452 (Jan.
7, 2009).
or her actions 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 gener-
ally enforces not only to punish a violator but also
to obtain injunctive relief to stop a violation, to
restore the environment to its previolation status,
and to “send a message” t hat wil l deter other vio-
lations. Although there is considerable exibility in
what the government will seek and what a court will
order, the objective will be 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. Enforcement consequences are per-
sonal to the defendant. As a general matter, a wet-
lands enforcement order operates against named
persons (or organiz ations) and does not run with
the land. However, the government may le a lien
against real property as part of its enforcement
action. In addition, recordation of property restric-
tions may be made part of the permanent 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 informa-
tion about illegal act ivities. e Corps encourage s
citizens to report wetlands violations.2 In addition,
eld personnel from state or local governments and
other federal agencies, such as the FWS, NOAA, or
the NRCS, may report violations. Where egregious
violations are suspected, trained criminal investi-
gators from the resource a gencies or the Federal
2. See 33 C.F.R. §326.3(a) (2009).
Page 118 Wetlands Deskbook
Bureau of Investigation 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 to elect among
enforcement options. As a matter of policy, how-
ever, the federal agencies try to provide the appro-
priate persons with a cease and desist order or
notice of a violation, and if possible, attempt to
resolve violations without using additional enforce-
ment tools.3
e Corps and EPA entered into an MOA in
January 1989 to a llocate the enforcement respon-
sibilities shared by the agencies under t he CWA.4
e Enforcement MOA recogniz es that the Corps
has greater eld resources than EPA and, thus, will
conduct the initial investigation in most cases.5
e investigating agency makes an initial §404
geographica l determination and an initial deter-
mination of whether a violation has occurred. EPA
may assume authority for geog raphical determ ina-
tions in problem ca ses 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 the lead enforcement
agency for violations involving unpermitted dis-
charges. EPA is also the lead agency for specia l
cases. However, if the lead a gency declines to
enforce, the other agency may take enforcement
actions. e Enforcement MOA establishes work-
ing relations bet ween the two agencies to promote
the ecient use of their joint resources. It does not
give any rights or defenses to property owners. For
example, a v iolator prosecuted by one agency can-
not rely on the Enforcement MOA to argue that
3. See id. §326.3(c)-(d).
4. See Memorandum of Agreement Between the Department of
the Army and the Environmental Protection Agency Concern-
ing Federal Enforcement for the Section 404 Program of the
Clean Water Act (Jan. 19, 1989), available at http://www.usace.
army.mil/CECW/Documents/cecwo/reg/mou/enfmou.pdf (last
visited Mar. 31, 2009) [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, note 16.
the prosecution should have been brought by t he
other agency.
I. Some General Enforcement
A. Who May Be Held Liable for Violations?
e CWA is a “zero tolerance” st atute.7 Obli-
gations under the CWA apply to “person[s],” a
term dened in t he statute to include “an indi-
vidual, corporation, partnership, association, State,
municipality, commission, or political subdivision
of a State, or any interstate body.8
is general de nition applies for purposes of
administrative a nd civil enforcement. For criminal
violations, the term also includes “any responsible
corporate ocer.”9
Although the Corps’ regulations do not dene
“person,” EPA’s §404 reg ulations do. Under those
regulations, EPA uses the same terms as the stat-
ute, but adds that “person” includes individuals
as well as various organizations and an “agent or
employee” of any of the organizations identied
within the denition.10
Under these denitions, any person or entity
responsible for an unpermitted discharge may be
prosecuted for a violation of the CWA. is includes
the owner of the property, a nonowner who dis-
charges ll onto the property of another, and con-
tractors who are employed to conduct physical work
involved in lling. Consulting and design engineers
involved in construction projects have also been
held liable for illegal lling under §404.11
In In re Carsten,12 the court exa mined the issue
of t he required level of decisionmaking authority
for an individual to be liable. e fact s presented
were that Mr. Medore operated a lla ma ranch
in 1993-1994. A body of water known as Alten-
berg Slough was located on the property. Medore
hired Mrs. Greta Carsten a s a llama manager.
Mrs. Carsten and her husband lived on the ranch,
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. See 40 C.F.R. §232.2 (2008).
11. See United States v. Board of Trustees of Fla. Keys Community
College, 531 F. Supp. 267, 274-75, 12 ELR 20391 (S.D. Fla.
1981); United States v. Weisman, 489 F. Supp. 1331, 10 ELR
20698 (M.D. Fla. 1980); United States v. County of Stearns,
No. 3-89-0616, slip op. (D. Minn. Mar. 15, 1990).
12. 211 B.R. 719 (D. Mont. 1997).

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