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Wetland Symposium

Section 404 Enforcement and the Protection of Wetlands


JOHN M. BRINK

U.S. Environmental Protection Agency, 999 18th Street, Suite 500, Denver, CO 80202

The discharge of dredged and fill material is regulated by U.S. Environmental Protection Agency (EPA) and the Corps of Engineers pursuant to Section 404 of the Clean Water Act. EPA and the Corps also share responsibility for enforcement against violations of the Act and have entered into a memorandum of agreement that distributes the enforcement work between the agencies and spells out their roles and responsibilities in enforcement.

The Clean Water Act provides both administrative and judicial enforcement authorities, including injunctive relief to remedy violations and civil penalties against the violator. The criminal enforcement provisions of the Act include fines and imprisonment for knowing and willful violations. Contractors and companies convicted of criminal violations of the Act can also be barred from doing business with the government. All of these authorities have been brought to bear at various times against violators of Section 404.

The scope of the Clean Water Act's definition of the term "person" and the wide range of activities that are subject to regulation under Section 404 are broad. As a consequence, Section 404 enforcement actions have been taken against individuals, businesses and corporations, and a variety of governmental organizations.

In performing its Section 404 enforcement responsibilities, EPA uses its information-gathering powers under Section 308 of the Act to investigate violations and determine the appropriate magnitude of civil penalties. These powers include the authority to conduct inspections, examine records, and demand information and documentation from suspected violators. These law enforcement tools have been used in a variety of ways. Some EPA regions have interagency agreements with other agencies, such as the Corps, the U.S. Fish and Wildlife Service, and state agencies, to help resolve minor violations and screen potential enforcement cases. In other EPA regions, including EPA Region VIII, support and coordination on enforcement are more informal.

As illustrated by a number of case examples, enforcement of Section 404 has produced a variety of outcomes. In most cases the enforcement remedy is restoration of the impacted area or mitigation to compensate for the loss of functions and values caused by the violation. Penalties and projects performed in lieu of penalties have also been accepted in settlements resolving violations. However, enforcement is not always well suited to addressing large-scale ecosystem management problems.

Nonetheless, enforcement of Section 404 can have a widespread deterrent effect and strengthen the effectiveness of regulatory and non-regulatory programs aimed at protecting and enhancing wetlands. Although the deterrent effect is difficult to measure, the linkages between enforcement actions and strengthened regulatory and non-regulatory approaches to wetland protection can be demonstrated.


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