Enforcement

• Author: Margaret 'Peggy' Strand/Lowell Rothschild
• Pages: 117-136

Page 117

Chapter 6

Enforcement

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

Principles

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).