Wetlands Enforcement
Wetlands Enforcement In addition to jointly implementing the Clean Water
Act Section 404 program, EPA and the U.S. Army Corps of Engineers (Corps)
share Section 404 enforcement authority. This fact sheet gives an overview
of how the agencies implement this shared authority.
Types of Violations
Section 404 violations fall into two broad categories:
- failure to comply with the terms or conditions of a Section 404 permit
- discharging dredged or fill material to waters of the United States
without a permit.
In 1989, EPA and the Corps entered into a Memorandum of Agreement (MOA)
on enforcement to ensure efficient and effective implementation of this
shared authority. Under the MOA, the Corps, as the Federal agency that
issues permits, has the lead on Corp-issued permit violation cases. For
unpermitted discharges, EPA and the Corps determine the appropriate lead
agency based on criteria in the MOA.
Enforcement Goals and Tools
EPA's Section 404 enforcement program has three goals: protect the environment
and human health and safety, deter violations, and treat the regulated
community fairly and equitably. EPA's enforcement program achieves these
goals through voluntary compliance and by using the enforcement tools
provided under Sections 309 and 404 of the Clean Water Act.
In administrative enforcement, under Section 309(a), EPA can issue administrative
compliance orders requiring a violator to stop any ongoing illegal discharge
activity and, where appropriate, to remove the illegal discharge and otherwise
restore the site. Under Section 309(g), EPA and the Corps can assess administrative
civil penal ties of up to, but not exceeding, $125,000 per action.
In judicial enforcement, Sections 309(b) and (d) and 404(s) give EPA
and the Corps the authority to take civil judicial actions, seeking restora
tion and other types of injunctive relief, as well as civil penalties.
The agencies also have authority under Section 309(c) to bring criminal
judicial enforcement actions for knowingly or negligently violating Section
404.
Case Selection
EPA and the Corps consider a wide variety of factors when deciding whether
to initiate an enforcement action and, if so, what kind. These factors
include the amount of fill, the size of the water body (acres of wetlands
filled and the environmental significance), the discharger's previous
experience with Section 404 requirements, and the discharger's compliance
history.
In most instances, EPA and the Corps prefer to resolve Section 404 viola
tions through voluntary compliance or administrative enforcement.
Wetlands Criminal Enforcement
Since enactment of the Clean Water Act, EPA and the Corps have used their
criminal enforcement authoritites sparingly in response to Section 404
violations. As demonstrated by the following examples, EPA and the Corps
reserve their criminal enforcement authority for only the most flagrant
and egregious Section 404 violations.
United States v. Pozsgai
In December 1989, a Philadelphia jury convicted John Pozsgai on 40 counts
of knowingly filling wetlands in Bucks County, Pennsylvania, without a
Section 404 permit. Mr. Pozsgai was sentenced to three years in jail,
ordered to restore the site upon his release, and assessed a fine. His
conviction and sentence have been affirmed by the U.S. Supreme Court.
Even prior to purchasing the 14-acre tract in 1987, Mr. Pozsgai was told
by private consultants that the site contained wetlands subject to permitting
requirements of Section 404. He purchased the property at a reduced price
due to the presence of wetlands, and then proceeded to ignore no fewer
than ten warnings from EPA and Corps field staff to stop filling the wetlands
without first getting a Section 404 permit. He also defied a temporary
restraining order (TRO) issued by a Federal court judge. In fact, the
government documented violations of the TRO on videtape, thanks to the
cooperation of neighbors whose homes were being flooded as a result of
Mr. Pozsgai�s filling in his wetlands.
United States v. Ellen
In January, 1991, William Ellen was found guilty by a Maryland jury of
knowingly filling 86 acres of wetlands without a Section 404 permit. He
was sentenced to six months in jail and one year supervised release. The
U.S. Supreme Court denied review of the conviction and sentence.
Mr. Ellen is a consultant who was hired by Paul Tudor Jones to assist
in the location and creation of a private hunting club and wildlife preserve
on Maryland�s Eastern Shore. With Mr. Ellen�s asssistance, Jones selected
a 3,000 acre site in Dorchester County that bordered Chesapeake Bay tributaries
and consisted largely of forested wetlands and tidal marshes. As project
manager, Mr. Ellen was responsible for acquiring enviromental permits
and complying with all applicable environmental rules and regulations.
His own consulting engineers repeatedly told him that a Section 404 permit
would be required. Nevertheless, he supervised extensive excavation and
construction work, destroying wetlands at the site, without first obtaining
a Section 404 permit. Despite repreated warnings to Mr. Ellen from the
Corps, this unpermitted activity did not stop until the Corps contacted
the subcontractors directly.
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