Enforcement
Overview
The purpose of the Section 404 program is to insure that the physical, biological, and chemical quality of our nation's water is protected from irresponsible and unregulated discharges of dredged or fill material that could permanently alter or destroy these valuable resources.
To ensure compliance with regulations, the first step is to determine whether a Corps permit will be required for a proposed project. Then, if necessary, an applicant goes through the process of obtaining a permit before performing the work. This avoids the necessity of the Corps having to pursue an enforcement action on an activity that is performed without the required permit.
When a project is undertaken in a regulated area without a permit, or when a project does not comply with permit terms and conditions, enforcement action becomes necessary. Some violations are detected by Corps personnel during field visits or compliance inspections. However, since it is not practicable to monitor all activities in the district, the Corps heavily relies on the public to report unauthorized activity. Many activities investigated by the Enforcement Section are reported to the Corps by private citizen or local, state, and federal agencies. It is Corps policy to investigate all reports that are received.
When a violation is confirmed, the Corps seeks to resolve the case in various ways, depending on the circumstances. The Corps attemps to contact violators to request information on the activity and to inform them of the violations. A warning letter is usually sent to a violator if the work has already been completed. If the work is ongoing, a cease and desist order is sent to the violator, directing that the unauthorized work be stopped immediately.
When an unauthorized structure is constructed in navigable waters, the Corps may require that the structure be removed or may authorized the structure by issuing an after-the-fact permit, depending on the impact of the structure on navigation. If a permitted project is not in compliance with the terms and conditions of the permit, the Corps may require a modification of the project to comply with the permit. Alternatively, the permit may be modified to allow for minor deviations from original permit specifications if the impacts are not significant. However, permit modifications are used infrequently for resolving violations.
If a project involves an unauthorized fill in wetlands or other waters, the violator may choose to immediately remove the fill material and restore the site. The case may then be closed, provided the violator did not commit a willful violation of Clean Water Act regulations.
If immediate restoration cannot be obtained, the Corps notifies other agencies of the violation and requests site-specific comments from them. The Environmental Protection Agency, the U.S. Fish and Wildlife Service, and if appropriate, the National Marine Fisheries Service are notified.
After considering agency comments and information provided by the violator, the Corps determines whether the unauthorized activity may be authorized by an after-the-fact permit or whether restoration of the site will be required. Some form of mitigation may be required as well. In less that 10 percent of cases, the violator is allowed to apply for an after-the-fact permit. Usually, restoration is required; more than two-thirds of violations are resolved by some form of restoration.
The EPA has independent enforcement authority for violations involving fill in wetlands and other waters under the Clean Water Act. Accordingly, some cases are referred to EPA for enforcement action. This happens for less than ten percent of enforcement cases.
If you are planning work in a river, stream, or wetland, notify the Corps of Engineers before starting work.
