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-
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
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 ecient 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.
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
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 dened 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
Although the Corps’ regulations do not dene
“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 identied
within the denition.10
Under these denitions, 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,
United States v
. TGR Corp., 171 F.3d 762
, 29 ELR 21059
(2d Cir. 1999).
9. Id. §1319(c)(6), §309(c)(6).
11. See United States v. Board of Trustees of Fla. Keys Community
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).