United States
Environmental Protection
Agency
Office of Water (WH-556F).
Office of Wetlands, Oceans.
and Watersheds (A-104 F)
EPA843-F-93-001m
March 1993
WETLANDS FACT SHEET # 13
Wetlands Enforcement
in addition to jointly implementing the
dean Water Act Section 404 program, EPA and
the US. Army Corps of Engineers (Corps) share
Section 404 enforcement authority. There are two
broad categories of Section 404 violations:
• failure to comply with the terms or
conditions of a Section 404 permit
• discharging dredged or fill material
to waters of the U.S. without first
obtaining a permit
In 1989, EPA and the Corps entered into a Memo-
randum of Agreement (MOA) on enforcement to
ensure efficient and effective implementation of
this shared authority. Under the MOA, the Corps,
as the Federal permitting agency, has the lead on
Corps-issued permit violation cases. For
unpermitted discharge cases, EPA and the Corps
determine the appropriate lead agency based on
criteria in the MOA.
Turning to judicial enforcement, Sections
309(b) and (d) and 404(s) give EPA and the Corps
the authority to pursue 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
knowing or negligent violations of Section 404.
The goals of EPA's Section 404
enforcement are three-fold: environ-
mental protection; deterrence; and fair
and equitable treatment of the regu-
lated community. In addition to vol-
untary compliance, which plays an im-
portant role in the Section 404 enforce
ment program, Sections 309 and 404 of
the Clean Water Act provide the agen-
cies with several formal enforcement
mechanisms to use in achieving these
goals.
In the administrative arena, un-
der Section 309(a), EPA can issue ad-
ministrative compliance orders requir-
ing a violator to stop any ongoing ille-
gal discharge activity and, where ap-
propriate, to remove the illegal dis-
charge and otherwise restore the site.
Section 309(g) authorizes EPA and the
Corps to assess administrative civil
penalties of no more than $125,000 per
violation.
EPA and the Corps consider a wide vari-
ety of factors when deciding whether to exercise
our enforcement discretion and, if so, what type of
enforcement action to initiate. These factors in-
clude: the amount of fill; the size of the waterbody,
including acres of wetlands filled and their envi-
ronmental significance; the discharger's previous
experience with Section 404 requirements and the
discharger's compliance history.
In general, EPA and the Corps prefer to
resolve Section 404 violations through voluntary
compliance or administrative enforcement.
1990
1992
1991
FbalYcw
EPA Section 404 enforcement actions (initiated)
FOR MORE INFORMATION: call the EPA Wetlands Hotline* at 1-800-832-7828
•contractor operated
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Wetlands Criminal Enforcement
Since enactment of the Clean Water Act,
EPA and the Corps have taken fewer than 20
criminal enforcement actions in response to Sec-
tion 404 violations. Moreover, of those found
guilty of criminal Section 404 violations, fewer
than 10 of these violators have actually been
sentenced to jail time. 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 know-
ingly filling wetlands in Bucks County, Pennsyl-
vania, 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 US Supreme Court.
Even prior to purchasing the 14-acre tract
in 1987, Mr. Pozsgai was told by private consult-
ants that the site contained wetlands subject to
the 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 less than 10 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 videotape, thanks to the cooperation of neigh-
bors 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. TheU5.SupremeCourt
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 dub and wildlife
preserve on Maryland's Eastern Shore. With
Mr. Ellen's assistance, 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 environmental permits and comply-
ing with all applicable environmental rules and
regulations. His own consulting engineers re-
peatedly 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 repeated
warnings to Mr. Ellen from the Corps, this
unpennitted activity did not stop until theCorps
contacted the subcontractors directly.
For more information: contact the EPA Wetlands Hotline* at 1-800-832-7828
•contractor operated
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