CWA Section 404 Enforcement Overview
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 webpage 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 can assess administrative civil penalties of up to $16,000 per day of violation, with a maximum cap of $187,500 in any single enforcement action.
In judicial enforcement, Sections 309(b) and (d) and 404(s) give EPA and the Corps the authority to take civil judicial enforcement actions, seeking restoration 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.
EPA and the Corps consider a wide variety of factors when deciding whether to initiate an enforcement action and, if so, what type of action to pursue. 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 violations through voluntary compliance or administrative enforcement. Further information about EPA’s case selection and enforcement procedures can be found in the January 1989 MEMORANDUM Between The Department of the Army and The Environmental Protection Agency, Federal Enforcement for the Section 404 Program of the Clean Water Act
Section 404 Criminal Enforcement
Since enactment of the Clean Water Act, EPA and the Corps have used their criminal enforcement authorities sparingly in response to Section 404 violations. As demonstrated by the following example, EPA and the Corps reserve their criminal enforcement authority for only the most flagrant and egregious Section 404 violations.
The Decision was affirmed on appeal by the U.S. Court of Appeal for the Fifth Circuit on February 1, 2008, and later denied certiorari by the U.S. Supreme Court.
Agency Section 404 Enforcement Documents
Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties and the Revocation or Suspension of Permits (40 CFR 22) (PDF) (45 pp, 136K) - regulations, established by the EPA, that govern adjudicatory proceedings brought by EPA for the assessment of Class II administrative penalties under Section 309(g) of the Clean Water Act.
Janurary 1989 Memorandum of Agreement - establishes the allocation of enforcement responsbilities between EPA and the Corps for Section 404
February 1994 Modification to January 1989 MOA (PDF) (1 p, 45K)
December 2001 EPA Revised CWA Section 404 Settlement Penalty Policy (PDF) (8 pp, 224K)