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 and/or fill material that could permanently alter or destroy these valuable resources.
Procedures for enforcing Corps permitting authorities for non-compliance actions and alleged unauthorized actions are found in the regulations at 33 CFR Part 326 and are briefly summarized below:
Corps of Engineers employees are instructed on the observation and reporting of suspected unauthorized activities in waters of the United States and of violations of issued permits. The assistance of members of the public and other interested Federal, State and local agencies is encouraged.
When a project or its work activities does not comply with or exceeds the terms and conditions of the permit and/or its authorizations that has been issued, the applicant and contractor, if applicable, are considered to be in non-compliance with their permit authorization.
The non-compliance activity/fill can be in violation of either Section 404 of the Clean Water Act or Section 10 of the Rivers and Harbors Act, depending upon which authority the permit was issued under. Non-compliance issues are normally detected during field visit or compliance inspections and can usually be resolved once the applicant/contractor has been notified. However, in May 2010, the Walla Walla Regulatory Division began implementing an Administrative Civil Penalties Process for more severe non-compliance issues. Fines can be issued up to a maximum of $52,414 (per 33 CFR 326.6, Amendment 82 FR 47623, October 13, 2017 Final Rule) per violation.
Alleged Unauthorized Action
Performing work in waters of the United States and/or their adjacent wetlands without prior authorization from the U.S. Army Corps of Engineers (USACE) is considered an alleged unauthorized action.
When the district engineer becomes aware of any unauthorized activity still in progress, he must first issue a cease and desist order and then begin an investigation of the activity to ascertain facts concerning alleged violations. If the unauthorized activity has been completed he will advise the responsible party of his discovery and begin an investigation. Following his evaluation, the district engineers may formulate recommendations on the appropriate administrative course or legal action to be taken.
The district engineer's evaluation contains an initial determination of whether any significant adverse impacts are occurring which would require expeditious corrective measures to protect life, property, or a significant public resource. Once that determination is made, such remedial measures can be administratively ordered and a decision can be made on whether legal action is necessary. In certain cases, district engineers, following the issuance of a cease and desist order, coordinate with state and Federal resource agencies in deciding what action is appropriate. Further evaluation of the violation takes into consideration voluntary compliance with a request for remedial action. A permit is not required for restoration or other remedial action.
For those cases that do not require legal action and for which complete restoration has not been ordered, the Department of the Army will accept applications for after-the-fact permits. The full public interest review is deferred during the early stages of the enforcement process. A complete public interest review is conducted only if and when the district engineer accepts an application for an after-the-fact permit.
The laws that serve as the basis for the Corps regulatory program contain several enforcement provisions which provide for criminal, civil, and administrative penalties. While the Corps is solely responsible for the initiation of appropriate legal actions pursuant to enforcement provisions relating to its Section 10 authority, the responsibility for implementing those enforcement provisions relating to Section 404 is jointly shared by the Corps and EPA. For this reason, the Army has signed a Section 404 Enforcement Memorandum of Agreement (MOA) with USEPA to ensure that the most efficient use is made of available Federal resources. Pursuant to this MOA, the Corps generally assumes responsibility for enforcement actions with the exception of those relating to certain specified violations involving unauthorized activities.
If a legal action is instituted against the person responsible for an unauthorized activity, an application for an after-the-fact permit cannot be accepted until final disposition of all judicial proceedings, including payment of all fees as well as completion of all work ordered by the court.
The Corps strives to reduce violations by effective publicity, an aggressive general permit program, and an efficient and fair evaluation of individual permit applications.