Federal Enforcement When Pond Work Goes Unpermitted

Key points

• AgencyEPA explains that where the Corps is the permitting authority, EPA and the Corps share section 404 enforcement (and that where a state or tribe administers 404, EPA may still act in certain cases). Violations fall into two categories: failure to comply with a section 404 permit, and discharging dredged or fill material into waters of the United States without a permit. Under the 1989 EPA-Army MOA the Corps leads on Corps-issued permit violations; for unpermitted discharges the agencies pick the lead agency using the MOA's criteria.

  EPA, Enforcement under CWA Section 404 (web page, last updated Feb. 18, 2026) [1]
  Show the source text

  When the U.S. Army Corps of Engineers (Corps) is the permitting authority, EPA and the Corps share Section 404 enforcement authority. ... in certain cases, EPA may also take enforcement action. ... failure to comply with the terms or conditions of a Section 404 permit, or ... discharging dredged or fill material to waters of the United States without a permit. ... 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.

  Open U.S. Environmental Protection Agency (opens in a new tab)

• ExemptionA section 404 permit is a shield: compliance with a section 404 permit - including any activity carried out under a general permit (e.g., a nationwide permit) - is deemed compliance with sections 1311, 1317 and 1343 for purposes of both government enforcement (section 1319) and citizen suits (section 1365).

  Applies when: Pond or dam work done under and in compliance with an individual or general (nationwide) section 404 permit. 33 U.S.C. 1344(p) (CWA section 404(p)) [2]
  Show the source text

  Compliance with a permit issued pursuant to this section, including any activity carried out pursuant to a general permit issued under this section, shall be deemed compliance, for purposes of sections 1319 and 1365 of this title, with sections 1311, 1317, and 1343 of this title.

  Open Office of the Law Revision Counsel, U.S. House of Representatives (opens in a new tab)

• AgencyThe 1989 Army-EPA enforcement MOA assigns the lead: using its criteria, the investigating agency decides which agency completes the case. EPA leads on unpermitted activities involving (a) repeat violators, (b) flagrant violations, (c) cases or classes of cases EPA requests, or (d) cases where the Corps recommends an EPA administrative penalty action may be warranted. The Corps leads on all other unpermitted cases and on all violations of Corps-issued permits. A lead agency's decision on any issue in a case, including a decision to take no enforcement action, is final for that case, but this does not preclude the lead agency from referring the matter to the other agency.

  Army-EPA MOA, Federal Enforcement for the Section 404 Program (Jan. 19, 1989), secs. II.D, III.D [4]
  Show the source text

  including a decision that no enforcement action be taken, is final for that case. ... does not preclude the lead enforcement agency from referring the matter to the other agency ... EPA will act as the lead enforcement agency when an unpermitted activity involves ... Repeat Violator(s) ... Flagrant Violation(s) ... Where EPA requests a class of cases or a particular case ... The Corps recommends that an EPA administrative penalty action may be warranted. ... The Corps will act as the lead enforcement agency in all other unpermitted cases ... for Corps-issued permit condition violations.

  Open U.S. Environmental Protection Agency (web text of the 1989 Army-EPA MOA) (opens in a new tab)

• ProcessUnder the MOA, the investigating or lead agency should tell the responsible parties about the violation and that all illegal activity should stop pending further federal action. The agencies' policy is to avoid permanent environmental harm by requiring remedial actions or ordering removal and restoration; where complete removal is not appropriate, the violator may be required to provide compensatory mitigation.

  Army-EPA MOA (Jan. 19, 1989), secs. II.E, III.C [4]
  Show the source text

  It is the policy of both agencies to avoid permanent environmental harm caused by the violator's activities by requiring remedial actions or ordering removal and restoration. In those cases where a complete remedy/removal is not appropriate, the ... violator may be required ... to provide compensatory mitigation ... The investigating or lead enforcement agency should inform the responsible parties of the violation and inform them that all illegal activity should cease pending further federal action.

  Open U.S. Environmental Protection Agency (web text of the 1989 Army-EPA MOA) (opens in a new tab)

• AgencyCorps enforcement policy is to discourage unauthorized activities and to require corrective measures where appropriate. Because EPA has independent Clean Water Act enforcement authority over unauthorized discharges, the district engineer should normally coordinate with EPA on how to resolve a section 404 violation, and where he knows EPA is considering enforcement he should coordinate to avoid conflict or duplication.

  33 CFR 326.2; 33 CFR 326.3(g) [5]
  Show the source text

  based on a policy of regulating the waters of the United States by discouraging activities that have not been properly authorized and by requiring corrective measures ... As EPA has independent enforcement authority under the Clean Water Act for unauthorized discharges, the district engineer should normally coordinate with EPA ... In all cases where the district engineer is aware that EPA is considering enforcement action, he should coordinate with EPA to attempt to avoid conflict or duplication.

  Open eCFR (Office of the Federal Register / GPO) (opens in a new tab)

• ProcessEPA's section 404 enforcement tools: administrative compliance orders under 309(a) requiring the violator to stop ongoing illegal discharges and, where appropriate, remove the illegal discharge and restore the site; civil judicial actions under 309(b), 309(d) and 404(s) seeking restoration, other injunctive relief and civil penalties; and criminal actions under 309(c) for knowingly or negligently violating section 404.

  EPA, Enforcement under CWA Section 404 (web page, last updated Feb. 18, 2026) [1]
  Show the source text

  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. ... 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.

  Open U.S. Environmental Protection Agency (opens in a new tab)

• ProcessHow EPA and the Corps choose cases: factors include the amount of fill, the size and environmental significance of the water body, the discharger's previous experience with section 404, and compliance history. In most instances they prefer to resolve section 404 violations through voluntary compliance or administrative enforcement, and they reserve criminal enforcement for the most flagrant and egregious violations.

  EPA, Enforcement under CWA Section 404 (web page, last updated Feb. 18, 2026) [1]
  Show the source text

  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. ... EPA and the Corps reserve their criminal ... enforcement authority for only the most flagrant and egregious Section 404 violations.

  Open U.S. Environmental Protection Agency (opens in a new tab)

How the Corps handles unpermitted work and permit violations (33 CFR Part 326)

The Corps' enforcement rules in 33 CFR Part 326 cover work done without a required Department of the Army permit and work that does not comply with an issued permit. District engineers should investigate suspected violations in a timely manner, and Corps employees, the public, and representatives of state, local and other federal agencies should be encouraged to report them; the rules state that they create no mandatory duty for district engineers, and that departing from the procedures gives no private right of action against a district engineer. [5]

If the work is not complete, the notice of violation should be a cease-and-desist order prohibiting any further work pending resolution; for a completed project a cease-and-desist order should not be necessary, but the responsible parties should still be notified. Where the situation would otherwise qualify for the Corps' emergency permit procedures, the district engineer may, at his discretion, let the work continue under conditions he prescribes while the violation is resolved. [5]

For completed work, if the district engineer determines that initial corrective measures are required, he should issue an order specifying the measures and the time limits for completing them, and no Corps permit is needed for initial corrective measures done at his direction. In unusual cases where those measures substantially eliminate all current and future detrimental impacts, further enforcement should normally be unnecessary; in all other cases the order should normally state that complying with it does not foreclose later legal action or a later requirement to apply for a permit. [5]

After any required initial corrective measures, the district engineer will accept an after-the-fact permit application unless he determines that one of the exceptions in the Corps' rules applies. The exceptions include cases where restoration that eliminates current and future detrimental impacts has been completed to his satisfaction (no application is then processed); where he has determined that legal action is appropriate (no application is accepted until that action is completed); where a federal, state or local authorization or certification required by federal law has already been denied (no application is accepted); and where he is aware of enforcement litigation started by other federal, state or local regulatory agencies (no application is accepted and processing of a pending one is not continued, unless he determines that concurrent processing is clearly appropriate). To issue the permit, the district engineer must find the work is not contrary to the public interest and, where section 404 applies, that it complies with EPA's 404(b)(1) Guidelines; a denial should prescribe any final corrective actions. [5]

The 1989 Army-EPA agreement says no after-the-fact application shall be accepted until resolution has been reached through an appropriate enforcement response as determined by the lead agency, for example until all administrative, legal and/or corrective action is complete or a decision has been made that no enforcement action will be taken. The Corps' New Orleans District's undated enforcement web page says that if legal action is instituted against the person responsible for unauthorized work, an after-the-fact application cannot be accepted until final disposition of all judicial proceedings, including payment of all fees and completion of all work ordered by the court. [4][12]

If a permittee violates a permit's terms or conditions seriously enough to warrant enforcement, the district engineer should normally first contact the permittee, request corrected plans if needed, and try to resolve the violation; if that fails, a written compliance order should normally be issued by personal service, and any order will allow no more than 30 days to comply. If the permittee does not comply, the district engineer may consider the permit suspension and revocation procedures and/or recommend legal action; an order is not a prerequisite to legal action. [5]

The district engineer will recommend criminal or civil action in cases he considers appropriate, which include but are not limited to violations that in his opinion are willful, repeated, flagrant or of substantial impact; except for categories that must be forwarded through Corps headquarters, district engineers may refer cases directly to the U.S. Attorney. The glossary on the Corps' Fort Worth District enforcement web page says bulldozers, backhoes, dump trucks and other equipment used to place fill are considered point sources, and describes a "person" as a party who actually performed the work and a party with responsibility for or control over performance of the work. [5][13]

• ProcessThe Corps' enforcement rules (33 CFR Part 326) cover two situations: work done without a required Department of the Army permit (326.3) and work that does not comply with an issued permit (326.4). The rules state they create no mandatory duty for district engineers and no private right of action against a district engineer if the procedures are not followed.

  33 CFR 326.1 [5]
  Show the source text

  This part prescribes enforcement policies (§ 326.2) and procedures applicable to activities performed without required Department of the Army permits (§ 326.3) and to activities not in compliance with the terms and conditions of issued Department ... of the Army permits (§ 326.4). Procedures for initiating legal actions are prescribed in § 326.5. Nothing contained in this part shall establish a non-discretionary duty on the part of district engineers nor shall deviation from these procedures ... give rise to a private right of action against a district engineer.

  Open eCFR (Office of the Federal Register / GPO) (opens in a new tab)

• ProcessCease-and-desist order: once a violation is found, if the project is not complete the district engineer's notification should be a cease and desist order prohibiting any further work pending resolution. If the project is complete, a cease and desist order should not be necessary, but the responsible parties should still be notified. Every notification should identify the statutory authorities, indicate potential enforcement consequences, and direct the responsible parties to submit information the district engineer needs.

  33 CFR 326.3(c)(1)-(3) [5]
  Show the source text

  (1) If the violation involves a project that is not complete, the district engineer's notification should be in the form of a cease and desist order prohibiting any further work pending resolution of the violation ... (2) If the violation involves a completed project, a cease and desist order should not be necessary. However, the district engineer should still notify the responsible parties of the violation. ... identify the relevant statutory authorities, indicate potential enforcement consequences, and direct the responsible parties to submit any additional information

  Open eCFR (Office of the Federal Register / GPO) (opens in a new tab)

• ProcessInitial corrective measures (restoration orders): for completed unauthorized work, the district engineer should, in appropriate cases, solicit the views of EPA, the U.S. Fish and Wildlife Service and other agencies, and if he determines initial corrective measures are required he should issue an order specifying the measures and the time limits for completing them. In unusual cases where initial corrective measures substantially eliminate all current and future detrimental impacts of the unauthorized work, further enforcement should normally be unnecessary; in all other cases the order should normally state that compliance does not foreclose later legal action or a later requirement to apply for a permit.

  33 CFR 326.3(d)(1) [5]
  Show the source text

  solicit the views of the Environmental Protection Agency; the U.S. Fish and Wildlife Service ... specify the initial corrective measures required and the time limits for completing this work. In unusual cases where initial corrective measures substantially eliminate all current and future detrimental impacts ... further enforcement actions should normally be unnecessary. For all other cases ... order should normally specify that compliance with the order will not foreclose the Government's options to initiate appropriate legal action or to later require the submission of a permit application

  Open eCFR (Office of the Federal Register / GPO) (opens in a new tab)

• ExemptionNo Corps permit is needed for initial corrective measures undertaken at the district engineer's direction. The district engineer may also issue an order requiring initial corrective measures that resolve the violation where accepting or processing an after-the-fact permit application is prohibited or considered not appropriate under 33 CFR 326.3(e)(1)(iii)-(iv) (see claim fed-gap2-enforcement-009), but only after independently determining the measures are necessary and appropriate.

  33 CFR 326.3(d)(2)-(3) [5]
  Show the source text

  may also be issued by the district engineer in situations where the acceptance or processing of an after-the-fact permit application is prohibited or considered not appropriate pursuant to § 326.3(e)(1) (iii) through (iv) below. However, such orders will be issued only when the district engineer has reached an independent determination that such measures are necessary and appropriate. ... It will not be necessary to issue a Corps permit in connection with initial corrective measures undertaken at the direction of the district engineer.

  Open eCFR (Office of the Federal Register / GPO) (opens in a new tab)

• ProcessAfter-the-fact (ATF) permits: after any required initial corrective measures are completed, the district engineer will accept an ATF permit application unless one of the listed exceptions applies. Exception (i): no application is processed when restoration has been completed that eliminates current and future detrimental impacts to the district engineer's satisfaction. Exception (ii): no application is accepted where the district engineer determines legal action is appropriate, until that legal action has been completed.

  33 CFR 326.3(e)(1)(i)-(ii) [5]
  Show the source text

  Following the completion of any required initial corrective measures, the district engineer will accept an after-the-fact permit application unless he determines that one of the exceptions ... is applicable. ... (i) No permit application will be processed when restoration ... has been completed that eliminates current and future detrimental impacts to the satisfaction of the district engineer. (ii) No permit application will be accepted in connection with a violation where the district engineer determines that legal action is appropriate ... until such legal action has been completed.

  Open eCFR (Office of the Federal Register / GPO) (opens in a new tab)

• ExemptionMore ATF exceptions: (iii) no application is accepted where a federal, state or local authorization or certification required by federal law has already been denied; (iv) no application is accepted, and processing of a pending one is not continued, when the district engineer is aware of enforcement litigation initiated by other federal, state or local regulatory agencies, unless he determines that concurrent processing of an after-the-fact application is clearly appropriate.

  33 CFR 326.3(e)(1)(iii)-(iv) [5]
  Show the source text

  (iii) No permit application will be accepted where a Federal, state, or local authorization or certification, required by Federal law, has already been denied. (iv) No permit application will be accepted nor will the processing of an application be continued when the district engineer is aware of enforcement litigation that has been initiated by other Federal, state, or local regulatory agencies, unless he ... determines that concurrent processing of an after-the-fact permit application is clearly appropriate.

  Open eCFR (Office of the Federal Register / GPO) (opens in a new tab)

• ProcessDeciding an after-the-fact permit: the district engineer decides whether to issue the permit (with special conditions if appropriate) or deny it. To issue, he must find the work is not contrary to the public interest and, where section 404 applies, that it complies with EPA's 404(b)(1) Guidelines. A denial should prescribe any final corrective actions. If the applicant refuses corrective actions ordered after denial, or refuses to accept a conditioned permit, the district engineer may start legal action.

  33 CFR 326.3(e)(2) [5]
  Show the source text

  determine if a permit should be issued, with special conditions if appropriate, or denied. ... he must ... determine that the work involved is not contrary to the public interest, and if section 404 is applicable, that the work also complies with the Environmental Protection Agency's section 404(b)(1) guidelines. ... notification of denial should prescribe any final corrective actions ... If an applicant refuses to undertake prescribed corrective actions ordered subsequent to ... permit denial or refuses to accept a conditioned permit, the district engineer may initiate legal action

  Open eCFR (Office of the Federal Register / GPO) (opens in a new tab)

• RequirementAfter-the-fact permits under the MOA: no after-the-fact permit application shall be accepted until the violation has been resolved through the enforcement response chosen by the lead agency (for example, until all administrative, legal and/or corrective action is complete, or a decision has been made that no enforcement action will be taken).

  Army-EPA MOA (Jan. 19, 1989), sec. III.G [4]
  Show the source text

  No after-the-fact (ATF) permit application shall be accepted until resolution has been reached through an appropriate enforcement response as determined by the lead enforcement agency (e.g., until all administrative, legal and/or corrective action ... has been completed, or a decision has been made that no enforcement action is to be taken).

  Open U.S. Environmental Protection Agency (web text of the 1989 Army-EPA MOA) (opens in a new tab)

• ProcessViolations of an issued permit: if a permittee violates permit terms or conditions seriously enough to warrant enforcement, the district engineer should normally first contact the permittee, request corrected plans if needed, and try to resolve the violation. If that fails, a written compliance order should normally be issued by personal service, allowing no more than 30 days to bring the project into compliance. If the permittee does not comply, the district engineer may use the permit suspension/revocation procedures (33 CFR 325.7(c)) and/or recommend legal action. An order is not a prerequisite to legal action.

  Applies when: Work done under a Corps permit (including nationwide permits) that does not comply with its terms or conditions. 33 CFR 326.4(d) [5]
  Show the source text

  (1) First contact the permittee; (2) Request corrected plans reflecting actual work, if needed; and (3) Attempt to resolve the violation. ... a written order requiring compliance should normally be issued and delivered by personal service. Issuance of an order is not, however, a prerequisite to legal action. If an order is issued, it will specify a time period of not more than 30 days ... may consider using the suspension/revocation procedures in 33 CFR 325.7(c) and/or he may recommend legal action in accordance with § 326.5.

  Open eCFR (Office of the Federal Register / GPO) (opens in a new tab)

• ProcessReferral for criminal or civil action: the district engineer will recommend criminal or civil actions, for cases he considers appropriate, to obtain penalties, compliance with his orders, or other relief. Appropriate cases include, but are not limited to, violations that in his opinion are willful, repeated, flagrant, or of substantial impact. His litigation report (or other agreed documentation) also recommends any restoration or mitigation. Except for categories that must be forwarded through Corps headquarters under 326.5(d), district engineers may refer cases directly to the U.S. Attorney.

  33 CFR 326.5(a)-(c) [5]
  Show the source text

  he will recommend criminal or civil actions to obtain penalties for violations ... Appropriate cases for criminal or civil action include, but are not limited to, violations which, in the district engineer's opinion, are willful, repeated, flagrant, or of substantial impact. ... The litigation report or alternative documentation will also recommend what, if ... any, restoration or mitigative measures are required ... Except as provided in paragraph (d) of this section, district engineers are authorized to refer cases directly to the U.S. Attorney.

  Open eCFR (Office of the Federal Register / GPO) (opens in a new tab)

• ProcessCorps district description of enforcement options (Fort Worth District): the Corps may issue orders requiring corrective action, including removal of the unauthorized work and restoration, and/or in certain cases accept an after-the-fact permit application, start legal action, or recommend referral to EPA for administrative, civil or criminal penalties. The page's glossary of terms states that bulldozers, backhoes, dump trucks and other equipment used to place fill are considered point sources, and describes a 'person' as the party that actually performed the work and the party with responsibility for or control over performance of the work.

  Applies when: Relevant to both landowners and excavation contractors. USACE Fort Worth District, Regulatory - Enforcement (web page) [13]
  Show the source text

  The Corps may issue orders requiring corrective action including removal of the unauthorized work and restoration, and/or in certain cases accept an after-the-fact permit ... application, initiate legal action, or recommend referral to the Environmental Protection Agency for administrative, civil or criminal penalties. ... Bulldozers, backhoes, dump trucks and other equipment used to place fill are considered point sources. ... Person is a party who actually performed the work and party with responsibility for or control over performance of the work.

  Open U.S. Army Corps of Engineers, Fort Worth District (opens in a new tab)

Penalty amounts (as of September 28, 2026)

The Clean Water Act's civil penalty dollar figures are adjusted for inflation, and the Inflation Adjustment Act requires agencies to publish adjustments by January 15 of each year. EPA's current adjustment is a final rule published and effective January 8, 2025 (90 FR 1375), and the Corps' current adjustment is a final rule published and effective August 8, 2025 (90 FR 38403); both used a multiplier of 1.02598. [7][10][11]

EPA's table (40 CFR 19.4), for violations after November 2, 2015 and penalties assessed on or after January 8, 2025, sets the maximum court-imposed civil penalty under section 309(d) at $68,445 per day for each violation (statute as enacted: $25,000). EPA's Class I administrative penalty is up to $27,378 per violation with a $68,445 maximum, and its Class II administrative penalty is up to $27,378 per day of violation with a $342,218 maximum (statute as enacted: Class I up to $10,000 per violation with a $25,000 maximum; Class II up to $10,000 per day with a $125,000 maximum). [6][7]

The Corps' table (33 CFR 326.6), for violations after November 2, 2015 and penalties assessed on or after August 8, 2025, sets its Class I administrative penalty at up to $27,379 per violation with a $68,446 maximum, and judicial penalties under section 404(s)(4) at up to $68,446 per day for each violation. The Corps' administrative penalty applies only to Corps permittees who violate a permit condition or limitation, because the statute lets the Secretary of the Army assess administrative penalties only for violations of a section 404 permit the Secretary issued, while EPA may assess them against any person who violated section 301, for example by discharging without a required permit. [5][7]

In setting a court penalty, the court considers the seriousness of the violation, any economic benefit from it, any history of violations, good-faith efforts to comply, the economic impact of the penalty on the violator, and other matters as justice may require; EPA says its inflation rule does not set the penalty it will seek in a particular case. EPA's December 2001 section 404 settlement penalty policy sets how EPA calculates the minimum penalty the government will accept to settle administrative or civil judicial cases, and says that as a general matter EPA should always seek a penalty that at a minimum recovers the economic benefit of noncompliance plus some amount reflecting the gravity of the violation. [7][11][14]

The statute's criminal penalties for negligent violations of section 301 or of a section 404 permit are a fine of $2,500 to $25,000 per day of violation, imprisonment for up to 1 year, or both; for knowing violations they are a fine of $5,000 to $50,000 per day of violation, imprisonment for up to 3 years, or both. If the conviction is for a violation committed after a first conviction under the same paragraph of the statute (33 U.S.C. 1319(c)(1) for negligent violations, 1319(c)(2) for knowing violations), the maximums rise to a fine of $50,000 per day, 2 years' imprisonment, or both for negligent violations, and a fine of $100,000 per day, 6 years' imprisonment, or both for knowing violations. [7]

• StatusEPA's current adjustment was a final rule published and effective January 8, 2025 (90 FR 1375, FR Doc. 2025-00206), the ninth annual adjustment under the 2015 Inflation Adjustment Act, using a multiplier of 1.02598. The Act requires agencies to publish adjustments by January 15 of each year. EPA states the rule does not set the penalty it will seek in a particular case; those amounts are calculated under agency penalty policies that consider the seriousness of the violation, good-faith efforts to comply, economic benefit gained, and ability to pay.

  90 FR 1375-1378 (Jan. 8, 2025) [11]
  Show the source text

  The rule does not establish specific civil monetary penalty amounts the EPA may seek in particular cases. ... the seriousness of the violation, the violator's good faith efforts to comply, any economic benefit gained by the ... violator as a result of its noncompliance, and the violator's ability to pay. ... DATES: This final rule is effective January 8, 2025. ... requires each Federal agency to publish these adjustments by January 15 of each year. ... ninth annual adjustment ... which is 1.02598.

  Open Federal Register (govinfo) (opens in a new tab)

• StatusThe Corps' current adjustment was issued as a final rule published and effective August 8, 2025 (90 FR 38403, FR Doc. 2025-15110). It applied the 2025 cost-of-living multiplier of 1.02598 to the 2024 amounts ($26,686 per violation / $66,713 maximum for 309(g)(2)(A); $66,713 per day for 404(s)(4)), producing $27,379 / $68,446 and $68,446 per day. The new maximums apply to penalties assessed on or after the effective date; the rule was issued without notice and comment under the Inflation Adjustment Act.

  90 FR 38403-38406 (Aug. 8, 2025) [10]
  Show the source text

  DATES: This final rule is effective on August 8, 2025. ... the new statutory maximum penalty levels listed in ... Table 1 will apply to all statutory civil penalties assessed on or ... after the effective date of this rule. ... which is 1.02598. ... CWA, 33 U.S.C. 1319(g)(2)(A)..... $10,000 per $26,686 per 1.02598 $27,379 per ... maximum of $66,713. maximum of ... $68,446. ... CWA, 33 U.S.C. 1344(s)(4)........ Maximum of $25,000 Maximum of $66,713 1.02598 Maximum of $68,446 ... this rule is not subject to notice and opportunity for public comment or a delay in effective date.

  Open Federal Register (govinfo) (opens in a new tab)

• Current EPA penalty maximums (40 CFR 19.4, Table 1): for Clean Water Act violations after November 2, 2015 with penalties assessed on or after January 8, 2025 - judicial civil penalty under 309(d): $68,445 (statute as enacted $25,000); Class I administrative penalty under 309(g)(2)(A): $27,378 per violation / $68,445 maximum; Class II administrative penalty under 309(g)(2)(B): $27,378 / $342,218 maximum. The prior column (penalties assessed December 27, 2023 to January 7, 2025) was $66,712; $26,685/$66,712; and $26,685/$333,552.

  Applies when: EPA penalties assessed on or after January 8, 2025 for violations after November 2, 2015. 40 CFR 19.4, Table 1 (33 U.S.C. 1319(d), (g)(2)(A), (g)(2)(B)) [6]
  Show the source text

  the third column setting out the latest operative statutory civil monetary penalty levels for violations that occur or occurred after November 2, 2015, where penalties are assessed on or after January 8, 2025. ... | 33 U.S.C. 1319(d) | CLEAN WATER ACT (CWA) | 68,445 | 66,712 | 25,000 | 33 U.S.C. 1319(g)(2)(A) | CWA | 27,378/68,445 | 26,685/66,712 | 10,000/25,000 | 33 U.S.C. 1319(g)(2)(B) | CWA | 27,378/342,218 | 26,685/333,552 | 10,000/125,000

  Open eCFR (Office of the Federal Register / GPO) (opens in a new tab)

• Judicial civil penalties (statute as enacted): any person who violates section 301 (among other listed sections) or an EPA order under 309(a) is subject to a civil penalty not to exceed $25,000 per day for each violation (raised by inflation adjustments - see 40 CFR 19.4). In setting the amount, the court considers the seriousness of the violation, economic benefit, history of violations, good-faith efforts to comply, the economic impact of the penalty on the violator, and other matters as justice may require.

  33 U.S.C. 1319(d) [7]
  Show the source text

  Any person who violates section 1311, 1312, 1316, 1317, 1318, 1322(p) ... and any person who violates any order issued by the ... Administrator under subsection (a) of this section, shall be subject to a civil penalty not to exceed $25,000 per day for each violation. In determining the amount of a civil penalty the court shall consider the seriousness of the violation or ... violations, the economic benefit (if any) resulting from the violation, any history of such violations, any good-faith efforts to comply ... the economic impact of the penalty on the violator

  Open Office of the Law Revision Counsel, U.S. House of Representatives (opens in a new tab)

• Administrative penalties (statute as enacted): Class I - up to $10,000 per violation, maximum $25,000; Class II - up to $10,000 per day the violation continues, maximum $125,000. In setting the amount, the agency considers the nature, circumstances, extent and gravity of the violation and, for the violator, ability to pay, prior history, degree of culpability, economic benefit or savings, and other matters. (These dollar figures are adjusted for inflation - see 40 CFR 19.4 and 33 CFR 326.6.)

  33 U.S.C. 1319(g)(2)-(3) [7]
  Show the source text

  may not exceed $10,000 per violation, except that the maximum amount of any class I civil penalty under this subparagraph shall not exceed $25,000. ... class II civil penalty under paragraph (1) may not exceed $10,000 per day for each day during which the violation continues; except that the maximum amount of any class II civil penalty under this subparagraph shall not exceed ... $125,000. ... shall take into account the nature, circumstances, extent and gravity of the violation ... ability to pay, any prior history of such violations, the degree of culpability, economic benefit or savings

  Open Office of the Law Revision Counsel, U.S. House of Representatives (opens in a new tab)

• Current Corps penalty maximums (33 CFR 326.6(a)(1), Table 1): for violations after November 2, 2015 with penalties assessed on or after August 8, 2025 - Class I administrative penalties under CWA 309(g)(2)(A): $27,379 per violation, with a maximum of $68,446; judicially imposed civil penalties under CWA 404(s)(4): maximum of $68,446 per day for each violation.

  Applies when: Penalties assessed by the Corps on or after August 8, 2025 for violations after November 2, 2015. 33 CFR 326.6(a)(1) and Table 1 (33 U.S.C. 1319(g)(2)(A); 33 U.S.C. 1344(s)(4)) [5]
  Show the source text

  Under Section 309(g)(2)(A) of the Clean Water Act, Class I civil penalties may not exceed $27,379 per violation, except that the maximum amount of any Class I civil penalty shall not exceed ... $68,446. Under Section 404(s)(4) of the Clean Water Act, judicially-imposed civil penalties may not exceed $68,446 per day for each violation. ... Statutory civil monetary penalty amount for violations that occurred after November 2, 2015, and are assessed on or after August 8, 2025

  Open eCFR (Office of the Federal Register / GPO) (opens in a new tab)

• ProcessLimits of the Corps' administrative penalty: 326.6 applies to Department of the Army permittees who violate a permit condition or limitation. Once the Corps chooses to proceed with an administrative penalty it will not later pursue a judicial action under 326.5; an administrative penalty may be combined with a compliance order or a request for restoration and/or mitigation.

  Applies when: Corps-issued permits (not unpermitted work). 33 CFR 326.6(a)(2), (b)(1) [5]
  Show the source text

  once the Corps decides to proceed with an administrative penalty under these procedures it shall ... not subsequently pursue judicial action pursuant to § 326.5. ... An administrative civil penalty may be pursued in conjunction ... with a compliance order; request for restoration and/or request for mitigation issued under § 326.4. ... finds that a recipient of a Department of the Army permit (hereinafter referred to as “the permittee”) has violated any permit condition or limitation contained in that permit

  Open eCFR (Office of the Federal Register / GPO) (opens in a new tab)

• AgencyStatutory basis for that limit: under CWA 309(g)(1), EPA may assess administrative (class I or class II) penalties against any person who violated section 301 (for example, discharging without a required permit), while the Secretary of the Army may assess them only against a person who violated a condition or limitation in a section 404 permit issued by the Secretary; either must first consult with the state where the violation occurs.

  33 U.S.C. 1319(g)(1) [7]
  Show the source text

  (A) the Administrator finds that any person has violated section 1311, 1312, 1316, 1317, 1318, 1322(p), 1328, or 1345 of this title ... (B) the Secretary of the Army (hereinafter in this subsection referred to as the "Secretary") finds that any person has violated any permit condition or limitation in a permit issued under section 1344 of this title by the Secretary, ... the Administrator or Secretary, as the case may be, may, after consultation with the State in which the violation occurs, assess a class I civil penalty or a class II civil penalty under this subsection.

  Open Office of the Law Revision Counsel, U.S. House of Representatives (opens in a new tab)

• ProcessEPA's Clean Water Act Section 404 Settlement Penalty Policy (December 2001) sets how EPA calculates the minimum ('bottom-line') penalty the government will accept to settle administrative or civil judicial cases for discharging dredged or fill material without section 404 authorization or in violation of a section 404 permit: Penalty = Economic Benefit + (Preliminary Gravity Amount +/- Gravity Adjustment Factors) - Litigation Considerations - Ability to Pay - Mitigation Credit for SEPs. As a general matter, EPA should always seek a penalty that at a minimum recovers the economic benefit of noncompliance plus some amount reflecting the gravity of the violation.

  EPA, Clean Water Act Section 404 Settlement Penalty Policy (Dec. 2001), Parts I and III [14]
  Show the source text

  discharging dredged or fill material ... without Section 404 permit authorization, or in violation of a Section 404 permit. ... Penalty = Economic Benefit + (Preliminary Gravity Amount +/- Gravity Adjustment ... Factors) - Litigation Considerations - Ability to Pay - Mitigation Credit for SEPs ... the minimum penalty amount that the government will accept in settlement of the case ... As a general matter, the Agency should always seek a penalty that, at a minimum, recovers the ... economic benefit of noncompliance plus some amount reflecting the gravity of the violation.

  Open U.S. Environmental Protection Agency (opens in a new tab)

• Criminal penalties - negligent violations of section 301 or of a section 404 permit: a fine of not less than $2,500 nor more than $25,000 per day of violation, imprisonment for not more than 1 year, or both; for a repeat conviction, a fine of not more than $50,000 per day of violation, imprisonment of not more than 2 years, or both.

  33 U.S.C. 1319(c)(1) [7]
  Show the source text

  negligently violates section 1311 ... or in a permit issued under section 1344 of this title by the Secretary of the Army or by a State ... shall be punished by a fine of not less than $2,500 nor more than $25,000 per day of violation, or by imprisonment for not more than 1 year, or by both. If a conviction of a person is for a violation committed after a first conviction of such person ... under this paragraph, punishment shall be by a fine of not more than $50,000 per day of violation, or by imprisonment of not more than 2 years, or by both.

  Open Office of the Law Revision Counsel, U.S. House of Representatives (opens in a new tab)

• Criminal penalties - knowing violations of section 301 or of a section 404 permit: a fine of not less than $5,000 nor more than $50,000 per day of violation, imprisonment for not more than 3 years, or both; for a repeat conviction, a fine of not more than $100,000 per day of violation, imprisonment of not more than 6 years, or both.

  33 U.S.C. 1319(c)(2) [7]
  Show the source text

  knowingly violates section 1311 ... shall be punished by a fine of not less than $5,000 nor more than $50,000 per day of violation, or by imprisonment for not more than 3 years, or by both. If a conviction of a person is for a violation committed after a first conviction of such ... person under this paragraph, punishment shall be by a fine of not more than $100,000 per day of violation, or by imprisonment of not more than 6 years, or by both.

  Open Office of the Law Revision Counsel, U.S. House of Representatives (opens in a new tab)

Documented pond and dam enforcement examples

In a Wyoming case, EPA Region 8's January 30, 2014 order to Andrew Johnson says the Corps phoned him about dam work on Six Mile Creek on September 5, 2012, ordered him on October 26, 2012 to cease and desist any further earth-moving, and referred the case to EPA on February 7, 2013. The order states that a Corps inspection on October 11, 2012 confirmed about 12 cubic yards of dredged and fill material below the ordinary high water mark during construction of the dam, filling about a 40-foot reach of the creek and inundating about a 745-foot reach. [15]

The order required Johnson to immediately stop all unauthorized discharges and to submit a plan for removing all dredged or fill material discharged into waters of the United States and restoring those waters to their pre-impact condition and grade, with the work to be completed no later than 60 days after EPA approves the plan. EPA's docket lists the matter as closed on June 8, 2021, with the disposition "Completion and/or Termination of Administrative Order." [15][16]

EPA Region 7 news releases describe three cases involving dams, or an attempt to build a lake, on creek tributaries without a required permit. A Wayne County, Nebraska landowner and a Madison, Nebraska excavation contractor agreed to a $30,000 civil penalty to settle allegations over a dam on a tributary of Spring Branch Creek (2010); a Jefferson County, Missouri owner agreed to pay $30,000 and fully restore the affected part of a tributary of Belews Creek, where EPA said he discharged fill while building a dam (2015); and Wayne County, Missouri landowners reached a proposed settlement including a $35,000 penalty over fill allegedly placed in a tributary of Turkey Creek in an attempt to build a lake (2015). In both Missouri cases the Corps found the violation and referred it to EPA. [17][18][19]

In a 2007 Georgia case, EPA said its enforcement against a golf and convention resort resulted from an inappropriate claim of the farm pond exemption: "Buffalo Pond" was originally characterized as a farm pond but was built to function as a golf water hazard and fishing amenity. EPA's archived summary says a farm pond is excluded from section 404 permitting when it has an agricultural purpose, is sized according to its stated need, and does not adversely affect downstream or upstream waters. The settlement included onsite restoration, a $15,000 civil penalty, a supplemental environmental project transferring $100,000 in rights to wetland and river-front property for perpetual preservation, and pursuit of an after-the-fact section 404 permit with appropriate mitigation. [20]

In a Montana criminal case, the U.S. Attorney announced that Joseph David Robertson was sentenced on July 20, 2016 to 18 months in prison and three years' supervised release, and ordered to pay $129,933.50 in restitution, for unauthorized discharge of pollutants into waters of the United States and injury or depredation of United States property; the announcement says he had built nine ponds, some as large as about 4,900 square feet, directly in a stream and wetlands on national forest land and adjacent private land, despite being told repeatedly he had no legal right to do so. After his death, the Supreme Court on April 15, 2019 vacated the Ninth Circuit's judgment in the case and remanded it for consideration of whether the case is moot. [21][22]

EPA Region 9 describes a Kauai, Hawaii consent decree resolving violations that included grading and building dams in streams to create ponds without stormwater (NPDES) or section 404 permits, under which landowner James Pflueger agreed to pay $2 million in penalties to the State of Hawaii and the United States, and about $5.3 million of repair and restoration work is required. [23]

EPA's archived agriculture enforcement summaries also describe an order to restore wetlands excavated partly to create a private pond (Massachusetts, 2008), a penalty complaint EPA filed against an owner who, according to EPA, filled wetlands and streams to create a pond and then refused to restore the site (Alaska, 2008), an order to restore wetlands and streams excavated and filled during a farm drainage expansion that created a pond (Massachusetts, 2010), and a proposed consent decree over alleged discharges that included dredging existing ponds (Connecticut, 2012). [24][25][26]

• ProcessJohnson matter - how the case moved from the Corps to EPA: the Corps phoned Johnson on September 5, 2012 about the dam work; on October 26, 2012 it wrote that a standard project-specific CWA permit would have been required and ordered him to cease and desist further earth-moving; on February 7, 2013 the Corps referred the case to EPA for enforcement. EPA's May 22, 2013 letter invited a response within 21 days and offered to negotiate an administrative order on consent; EPA says it received no response.

  In re Andrew Johnson, EPA Region 8, Docket No. CWA-08-2014-0012 (Jan. 30, 2014), transmittal letter and paras. 7-9 [15]
  Show the source text

  The EPA's letter invited you to submit, within 21 days of ... an administrative order on consent (AOC) ... The EPA did not receive any response from you to the May 22, ... On September 5, 2012, the Corps contacted Mr. Johnson by telephone ... project-specific CWA permit would have been required prior to the dam construction activities ... further ordered Respondent to cease and desist any further earth-moving ... On February 7, 2013, the Corps referred this case to the EPA for enforcement in ... accordance with the "Memorandum of Agreement

  Open U.S. Environmental Protection Agency, Region 8 (Administrative Enforcement Dockets) (opens in a new tab)

• Wyoming creek dam (Andrew Johnson, Fort Bridger, Uinta County): EPA Region 8 found that in or about the summer and early fall of 2012 Johnson, or persons acting for him, began construction within and adjacent to Six Mile Creek without a section 404 permit that resulted in discharges of dredged and fill material below the ordinary high water mark. A Corps inspection on October 11, 2012 confirmed about 12 cubic yards of dredged and fill material below the ordinary high water mark during construction of a dam, filling about a 40-foot reach of the creek and inundating about a 745-foot reach. EPA described Six Mile Creek as a perennial tributary of the Blacks Fork River, itself a perennial tributary of the Green River.

  In re Andrew Johnson, EPA Region 8 Findings of Violation and Administrative Order for Compliance, Docket No. CWA-08-2014-0012 (Jan. 30, 2014), paras. 4-6 [15]
  Show the source text

  Range 115 West, Uinta County, Wyoming ... Six Mile Creek is a perennial tributary of the Blacks Fork River, which is a perennial ... tributary of the Green River. ... In or about the summer and early fall of2012 ... without a CWA section 404 permit, within and adjacent to Six Mile Creek ... On October 11,2012, the United States Army Corps of Engineers (Corps) conducted an ... approximately 12 cubic yards of dredged and fill material below the ordinary ... The work resulted in filling an ... approximately 40-foot reach of the creek and inundation of an approximately 745~foot reach.

  Open U.S. Environmental Protection Agency, Region 8 (Administrative Enforcement Dockets) (opens in a new tab)

• Johnson matter - what EPA's compliance order (issued under CWA 309(a), Jan. 30, 2014) required: immediately stop all unauthorized discharges; tell EPA in writing within 10 calendar days of intent to comply; within 14 days name a qualified stream/wetland restoration consultant; within 30 days submit a restoration plan for removal of all dredged or fill material discharged into waters of the United States and restoration of those waters to pre-impact condition and grade; complete the work no later than 60 days after EPA approves the plan. The order stated it is not itself a permit and that Johnson must consult the Corps about any permit needed for the restoration work.

  In re Andrew Johnson, EPA Region 8, Docket No. CWA-08-2014-0012 (Jan. 30, 2014), paras. 25-34 [15]
  Show the source text

  immediately terminate all unauthorized discharges ... Within ten (I 0) calendar days of receipt of this Order ... of his intent to comply fully with this Order ... Within fomieen (14) calendar days ... a consultant experienced in ... Within thirty (30) calendar days of receipt of this Order ... the removal of all dredged or fill material ... (2) the restoration, to their pre-impact condition and grade ... no later than 60 days ... This Order is not a permit ... If any such permit is required, Respondent shall

  Open U.S. Environmental Protection Agency, Region 8 (Administrative Enforcement Dockets) (opens in a new tab)

• StatusJohnson matter - administrative outcome on EPA's docket: EPA's administrative enforcement docket for Andrew Johnson (Docket No. CWA-08-2014-0012, Region 08) lists the complaint date as 01/30/2014, the status as Closed, the closed date as 06/08/2021, and the disposition as 'Completion and/or Termination of Administrative Order'. The only filing listed is the January 30, 2014 Findings of Violation and Administrative Order for Compliance.

  EPA Administrative Enforcement Dockets, Andrew Johnson, Docket No. CWA-08-2014-0012 [16]
  Show the source text

  Docket Number: CWA-08-2014-0012 ... Status: Closed ... Complaint Date: 01/30/2014 ... Closed Date: 06/08/2021 ... Disposition: Completion and/or Termination of Administrative Order ... (01/30/2014) #1 Findings of Violation and Administrative Order for Compliance

  Open U.S. Environmental Protection Agency (Administrative Enforcement Dockets) (opens in a new tab)

• Nebraska dam (2010): a Wayne County, Nebraska landowner and a Madison, Nebraska excavation contractor agreed to pay a $30,000 civil penalty (administrative consent agreement and final order, EPA Region 7) to settle allegations that they used earth-moving equipment to build a dam on a tributary of Spring Branch Creek without a Corps permit. The dam affected more than a quarter-mile of creek and at least 1.13 acres of adjacent wetland; EPA had ordered the landowner in April 2010 to remove the dam and fully restore the stream and wetlands.

  EPA Region 7 news release (Aug. 30, 2010) [17]
  Show the source text

  A Wayne County, Neb., landowner and a Madison, Neb., excavation contractor will pay a $30,000 civil penalty ... to construct a dam on a tributary of Spring Branch Creek without first obtaining a necessary permit from the U.S. Army Corps of Engineers. ... Construction of the dam impacted more than a quarter-mile stretch of the creek, and at least 1.13 acres of adjacent wetland, according to an administrative consent agreement and final order filed by EPA Region 7 ... ordered by EPA in April 2010 to remove the dam and fully restore

  Open U.S. Environmental Protection Agency (archived news release) (opens in a new tab)

• Missouri dam (2015): EPA Region 7 settled with a Jefferson County, Missouri property owner who, per a March 2014 Corps inspection, used earth-moving equipment to discharge fill into an unnamed tributary of Belews Creek while building a dam, without a section 404 permit; the Corps referred the case to EPA. He agreed to pay a $30,000 penalty and fully restore the impacted part of the tributary; the consent agreement was subject to a 30-day public comment period.

  EPA Region 7 news release (Apr. 2, 2015) [18]
  Show the source text

  Greg Schellert has agreed to pay a penalty of $30,000 and fully restore the impacted portion of the tributary. ... used earth-moving equipment to discharge fill material into the tributary as a ... part of work associated with the construction of a dam. ... The USACE referred the case to EPA after ... discovering the violations. ... The consent agreement is subject to a 30-day public comment period before it becomes final.

  Open U.S. Environmental Protection Agency (archived news release) (opens in a new tab)

• Missouri lake (2015): EPA Region 7 proposed a settlement including a $35,000 penalty with Wayne County, Missouri landowners who allegedly placed fill in a tributary of Turkey Creek in an attempt to build a lake without a Corps permit, affecting about 2,200 linear feet of stream. The Corps found the violation in an April 2014 inspection and referred it to EPA. As mitigation, the landowners agreed to protect 4,870 linear feet of stream and 27.7 acres of adjacent land from future development; the proposed settlement was subject to a 30-day public comment period.

  EPA Region 7 news release (Oct. 7, 2015) [19]
  Show the source text

  EPA Region 7 has reached a proposed settlement that includes a $35,000 penalty ... placed fill material into a tributary of Turkey Creek in an attempt to build a lake on their property without first obtaining a necessary permit from the U.S. Army Corps of Engineers. ... These actions impacted approximately 2,200 linear feet of stream. ... The Corps discovered the violation during an April 2014 inspection, and referred the action to EPA. ... will protect 4,870 linear feet of stream and 27.7 acres of adjacent land

  Open U.S. Environmental Protection Agency (archived news release) (opens in a new tab)

• Farm pond exemption claimed but rejected (Georgia, 2007): EPA brought a section 404 enforcement action (later settled; see next claim) against Barnsley Inn & Gardens, owner of a golf and convention resort near Adairsville, which allegedly filled more than 5 acres of wetlands adjacent to Dry Creek. EPA said the enforcement resulted from an inappropriate claim of the farm pond exemption: a farm pond is excluded from section 404 permitting when it has an agricultural purpose, is sized according to its stated need, and does not adversely affect downstream or upstream waters; 'Buffalo Pond' was originally characterized as a farm pond but was built to function as a golf water hazard and fishing amenity.

  EPA, CWA Agriculture-Related Enforcement Cases 2001-2007 (archived), entry dated July 16, 2007 [20]
  Show the source text

  Barnsley Inn & Gardens, L.P., owner of a golf and convention resort near Adairsville ... filled more than 5 acres of wetlands adjacent to Dry Creek ... The enforcement action was a result of an inappropriate claim under the CWA's farm pond exemption. A farm pond is excluded from Section 404 permitting requirements when the pond has an agricultural purpose, is sized according to its stated need, and does not adversely affect downstream or upstream waters. ... Buffalo Pond was originally characterized as a farm pond, but was constructed to function as a golf water hazard and fishing amenity.

  Open U.S. Environmental Protection Agency (archived web page) (opens in a new tab)

• Barnsley settlement terms (2007): onsite restoration to return the natural flow of Dry Creek (a Georgia designated secondary trout stream); a $15,000 civil penalty; a Supplemental Environmental Project purchasing and transferring $100,000 in rights to wetland and river-front property for perpetual preservation; and pursuit of an after-the-fact section 404 permit from the Corps with appropriate mitigation to authorize the remaining impacts.

  EPA, CWA Agriculture-Related Enforcement Cases 2001-2007 (archived), entry dated July 16, 2007 [20]
  Show the source text

  Barnsley will conduct onsite restoration work to return the natural flow of Dry Creek, a Georgia designated secondary trout stream. Barnsley also will pay a civil penalty of $15,000; complete a Supplemental Environmental Project by purchasing and transferring $100,000 in rights to wetland and river front property for perpetual preservation; and pursue an after-the-fact Section 404 permit from the Army Corps of Engineers with appropriate mitigation to authorize remaining impacts.

  Open U.S. Environmental Protection Agency (archived web page) (opens in a new tab)

• Criminal example - ponds dug into a stream (Montana): the U.S. Attorney announced that Joseph David Robertson was sentenced on July 20, 2016 to 18 months in prison and three years' supervised release, and ordered to pay $129,933.50 in restitution, for unauthorized discharge of pollutants into waters of the United States and injury or depredation of United States property. He had built nine ponds (some about 4,900 square feet) directly in a stream and wetlands on Beaverhead-Deerlodge National Forest land and adjacent private land near Basin, and kept building after being told repeatedly he had no legal right to do so. The Supreme Court later vacated the Ninth Circuit's judgment in the case (see claim fed-gap2-enforcement-055).

  U.S. Attorney's Office, District of Montana, press release (July 20, 2016) [21]
  Show the source text

  Joseph David Robertson, 77, was sentenced today to eighteen months in prison and three years’ supervised release for unauthorized discharge of pollutants into waters of the United States ... Robertson must also pay $129,933.50 in restitution. ... near Basin, Montana, one on Beaverhead-Deerlodge National Forest land and the other on adjacent private property ... nine ponds of varying sizes, including some as large as approximately 4900 square feet that were placed directly in the stream and wetlands area. ... despite being told repeatedly that he had no legal right to do so.

  Open U.S. Department of Justice, U.S. Attorney's Office, District of Montana (opens in a new tab)

• StatusRobertson - later history: after Robertson died, the U.S. Supreme Court on April 15, 2019 granted the motion to substitute his authorized representative as petitioner, granted certiorari, vacated the judgment of the Ninth Circuit (No. 16-30178, decided November 27, 2017), and remanded for consideration of whether the case is moot.

  Robertson v. United States, No. 18-609 (U.S. Apr. 15, 2019) (docket entries) [22]
  Show the source text

  United States Court of Appeals for the Ninth Circuit ... (16-30178) ... November 27, 2017 ... Motion to substitute Carri Robertson, as authorized representative, as petitioner in place of Joseph David Robertson, Deceased under Rule 35.1 filed. ... Petition GRANTED. Judgment VACATED and case REMANDED for consideration of the question whether the case is moot.

  Open Supreme Court of the United States (opens in a new tab)

• Dams in streams to create ornamental ponds (Hawaii): EPA Region 9 described a consent decree with landowner James Pflueger and two related entities resolving violations on Kauai that included grading and building dams in streams to create ponds without CWA stormwater (NPDES) or section 404 permits. He agreed to pay $2 million in penalties to the State of Hawaii and the United States and to perform about $5.3 million of repair and restoration work.

  EPA Region 9, Pflueger Clean Water Act Settlement - Factsheet (archived) [23]
  Show the source text

  two related corporate entities, Pflueger Properties and Pila’a 400 ... without obtaining a Clean Water Act (CWA) storm water National Pollutant Discharge Elimination System (NPDES) permit or a CWA section 404 permit for filling waters ... building dams in streams to create ponds ... Mr. Pflueger will pay fines totaling $2 Million to the State of Hawai’i and to the United States. ... work valued at approximately $5.3 Million is required under the settlement. ... This Consent Decree, the first combined Federal, State, County and citizen environmental enforcement action in Hawaii

  Open U.S. Environmental Protection Agency, Region 9 (archived web page) (opens in a new tab)

• Dredging existing ponds (Connecticut, 2012): EPA reported a proposed consent decree that would resolve a federal civil action against the owners of Falls Creek Farm (Sterling, Connecticut). The United States alleged that between 1987 and 2008 one or more defendants, or persons working for them, discharged dredged and/or fill material into about 10.5 acres of wetlands and other waters without a section 404 permit, including by filling wetlands for a private golf course and, allegedly, when they dredged existing ponds on the property and reshaped the banks of a perennial stream. The owners agreed to restore and create 11.3 acres of wetlands.

  EPA, CWA Agriculture-Related Enforcement Cases Archive for 2012 (archived), entry dated Oct. 2, 2012 [26]
  Show the source text

  have agreed to restore and create 11.3 acres of wetlands ... The proposed Consent Decree in this matter resolves ... The case alleges between 1987 and 2008 ... discharging dredged and/or fill material into approximately 10.5 acres of wetlands and other ... when the Defendants filled wetlands to construct a private golf course ... Unlawful discharges also allegedly occurred when the Defendants dredged existing ponds ... reshaped the banks of Carson Brook, a perennial stream

  Open U.S. Environmental Protection Agency (archived web page) (opens in a new tab)

Citizen suits by neighbors and groups

Under Clean Water Act section 505 (33 U.S.C. 1365), and subject to the notice, diligent-prosecution and administrative-penalty limits described below, any citizen, meaning a person with an interest that is or may be adversely affected, may sue any person alleged to be in violation of an "effluent standard or limitation" under the Act, or of an order issued by EPA or a state with respect to such a standard or limitation. That term includes an unlawful act under section 301(a), which makes the discharge of any pollutant unlawful except in compliance with listed sections including section 404, so a discharge of dredged or fill material into waters of the United States that does not comply with section 404 falls within the provision; whether a particular discharge is exempt is a separate question. [3][8]

The statute's list of enforceable standards does not name permits issued under section 404 itself, and compliance with a section 404 permit, including a general permit such as a nationwide permit, is deemed compliance with 33 U.S.C. 1311, 1317 and 1343 for citizen-suit purposes. [2][8]

Except for suits over violations of 33 U.S.C. 1316 and 1317(a), which may be brought immediately after notice, no citizen suit against an alleged violator may be started until 60 days after the plaintiff notifies EPA, the state where the alleged violation occurs, and the alleged violator. Under 40 CFR 135.3 the notice must give enough information to identify the standard, limitation or order allegedly violated, the activity, the persons responsible, the location, the date or dates, and the full name, address and telephone number of the person giving notice, plus the name, address and telephone number of any legal counsel representing that person. [8][27]

A citizen suit is barred if EPA or the state has commenced and is diligently prosecuting a civil or criminal court action to require compliance, though a citizen may intervene as of right in such an action in federal court. Citizen penalty suits are also barred where EPA or the Secretary of the Army has commenced and is diligently prosecuting an administrative penalty action under section 309(g), a state has commenced and is diligently prosecuting one under comparable state law, or a final order not subject to further judicial review has been issued and the violator has paid the penalty, unless the citizen filed suit before that action began or gave notice before it began and filed suit before the 120th day after the notice. [7][8]

The court may enforce the standard, limitation or order and apply any appropriate civil penalties under section 309(d), and in issuing a final order it may award litigation costs, including reasonable attorney and expert witness fees, to any prevailing or substantially prevailing party whenever it finds that appropriate. A suit about a discharge source may be brought only in the federal district where the source is located, and when the United States is not a party no consent judgment may be entered until 45 days after the U.S. Attorney General and EPA receive the proposed judgment. [8]

• RequirementWho may sue and whom: except as limited by 33 U.S.C. 1365(b) (notice and diligent prosecution) and 33 U.S.C. 1319(g)(6) (administrative penalty actions), 'any citizen' may bring a civil action on his own behalf against any person - including the United States and any other governmental instrumentality or agency to the extent the Eleventh Amendment permits - who is alleged to be in violation of (A) an 'effluent standard or limitation' under the Clean Water Act or (B) an order issued by the EPA Administrator or a State with respect to such a standard or limitation. A 'citizen' is defined as a person or persons having an interest which is or may be adversely affected.

  Applies when: A neighbor, downstream owner or group wants to sue over unpermitted pond or dam fill in a water of the United States. 33 U.S.C. 1365(a)(1), (g) (CWA section 505(a)(1), (g)) [8]
  Show the source text

  Except as provided in subsection (b) of this section and section 1319(g)(6) of this title, any citizen may commence a civil action on his own behalf ... against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State ... "citizen" means a person or persons having an interest which is or may be adversely affected.

  Open Office of the Law Revision Counsel, U.S. House of Representatives (opens in a new tab)

• RequirementWhy unpermitted fill is covered: section 301(a) makes 'the discharge of any pollutant by any person' unlawful except in compliance with listed sections, including section 1344 (section 404). Read together with 33 U.S.C. 1365(f)(1), which lists 'an unlawful act under subsection (a) of section 1311' as an enforceable 'effluent standard or limitation', a discharge of dredged or fill material into waters of the United States that is not in compliance with section 404 falls within the citizen-suit provision. (Whether a particular discharge is exempt, e.g. under 33 U.S.C. 1344(f), is a separate question not addressed by this quote.)

  33 U.S.C. 1311(a) (CWA section 301(a)); read with 33 U.S.C. 1365(f)(1) [3]
  Show the source text

  Except as in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the discharge of any pollutant by any person shall be unlawful.

  Open Office of the Law Revision Counsel, U.S. House of Representatives (opens in a new tab)

• DefinitionWhich violations can be enforced: for citizen suits, 'effluent standard or limitation under this chapter' means an eight-item list: (1) an unlawful act under section 1311(a); (2) an effluent or other limitation under section 1311 or 1312; (3) a standard of performance under section 1316; (4) a prohibition, effluent standard or pretreatment standard under section 1317; (5) a standard or requirement under section 1322(p); (6) a section 1341 certification; (7) a permit or permit condition issued under section 1342 (NPDES); and (8) a regulation under section 1345(d). The list does not name permits issued under section 1344 (dredged or fill material).

  33 U.S.C. 1365(f) (as amended by Pub. L. 115-282, Dec. 4, 2018) [8]
  Show the source text

  (1) ... an unlawful act under subsection (a) of section 1311 of this title; (2) an effluent limitation or other limitation under section 1311 or 1312 of this title; (3) standard of performance under section 1316 of this title; (4) prohibition, effluent standard or pretreatment standards under section 1317 of this title; (5) a standard of performance or requirement under section 1322(p) of this title; (6) a certification under section 1341 of this title; (7) a permit or condition of a permit issued under section 1342 of this title ... or (8) a regulation under section 1345(d) of this title.

  Open Office of the Law Revision Counsel, U.S. House of Representatives (opens in a new tab)

• TimelinePre-suit notice: no citizen suit against an alleged violator may be commenced prior to 60 days after the plaintiff has given notice of the alleged violation to (i) the EPA Administrator, (ii) the State in which the violation occurs, and (iii) the alleged violator. The exception is an action respecting a violation of sections 1316 and 1317(a), which may be brought immediately after notification. Notice must be given in the manner EPA prescribes by regulation (40 CFR Part 135).

  33 U.S.C. 1365(b)(1)(A) and closing sentences of 1365(b) [8]
  Show the source text

  prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order ... except that such action may be brought immediately after such notification in the case of an action under this section respecting a violation of sections 1316 and 1317(a) of this title. Notice under this subsection shall be given in such manner as the Administrator shall prescribe by regulation.

  Open Office of the Law Revision Counsel, U.S. House of Representatives (opens in a new tab)

• RequirementRequired contents of a citizen-suit notice (CWA): a notice of an alleged violation of an effluent standard or limitation or order must include sufficient information to permit the recipient to identify (1) the specific standard, limitation or order allegedly violated, (2) the activity alleged to be the violation, (3) the person or persons responsible, (4) the location, (5) the date or dates of the violation, and (6) the full name, address and telephone number of the person giving notice. Every notice must also state the name, address and telephone number of the legal counsel, if any, representing the person giving notice.

  40 CFR 135.3(a), (c) [27]
  Show the source text

  shall include sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated, the activity alleged to constitute a violation, the person or persons responsible for the alleged violation, the location of the alleged violation, the date or dates of such violation, and the full name, address, and telephone number of the person giving notice. ... The notice shall state the name, address, and telephone number of the legal counsel, if any, representing the person giving the notice.

  Open eCFR (Office of the Federal Register / GPO) (opens in a new tab)

• RequirementGovernment enforcement bar ('diligent prosecution'): no citizen suit may be commenced if EPA or the State 'has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State' to require compliance with the standard, limitation or order. If that government action is in federal court, any citizen may intervene in it as of right.

  33 U.S.C. 1365(b)(1)(B) [8]
  Show the source text

  if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right.

  Open Office of the Law Revision Counsel, U.S. House of Representatives (opens in a new tab)

• RequirementAdministrative penalty bar: a violation may not be the subject of a civil penalty action under section 1319(d), section 1321(b), or section 1365 (citizen suits) if (i) EPA or the 'Secretary' has commenced and is diligently prosecuting an administrative penalty action under section 1319(g); (ii) a State has commenced and is diligently prosecuting an action under a comparable State law; or (iii) EPA, the Secretary or the State has issued a final order not subject to further judicial review and the violator has paid a penalty assessed under section 1319(g) or the comparable State law. The exceptions for citizen suits are in the next claim.

  33 U.S.C. 1319(g)(6)(A); see 33 U.S.C. 1319(g)(1)(B) [7]
  Show the source text

  (i) with respect to which the Administrator or the Secretary has commenced and is diligently prosecuting an action under this subsection, (ii) with respect to which a State has commenced and is diligently prosecuting an action under a State law comparable to this subsection, or (iii) for which the Administrator, the Secretary, or the State has issued a final order not subject to further judicial review and the violator has paid a penalty assessed under this subsection ... shall not be the subject of a civil penalty action under subsection (d) of this section ... section 1365 of this title.

  Open Office of the Law Revision Counsel, U.S. House of Representatives (opens in a new tab)

• TimelineExceptions to the administrative penalty bar: the (g)(6)(A) limit on citizen penalty suits does not apply if (i) the citizen suit was filed before the administrative penalty action was commenced, or (ii) the citizen gave the 60-day notice before the administrative action was commenced and files suit before the 120th day after the notice was given.

  33 U.S.C. 1319(g)(6)(B) [7]
  Show the source text

  shall not apply with respect to any violation for which ... (i) a civil action under section 1365(a)(1) of this title has been filed prior to commencement of an action under this subsection, or (ii) notice of an alleged violation of section 1365(a)(1) of this title has been given in accordance with section 1365(b)(1)(A) of this title prior to commencement of an action under this subsection and an action under section 1365(a)(1) of this title with respect to such alleged violation is filed before the 120th day after the date on which such notice is given.

  Open Office of the Law Revision Counsel, U.S. House of Representatives (opens in a new tab)

• RequirementSuits against EPA and the court's powers: a citizen may also sue the EPA Administrator for failing to perform a non-discretionary act or duty under the Act. Federal district courts have jurisdiction, regardless of the amount in controversy or the parties' citizenship, to enforce the effluent standard or limitation or order, to order the Administrator to act, and 'to apply any appropriate civil penalties under section 1319(d)'. (The text names the Administrator of EPA; it does not name the Army Corps of Engineers.)

  33 U.S.C. 1365(a)(2) and flush language [8]
  Show the source text

  against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator. The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an effluent standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be, and to apply any appropriate civil penalties under section 1319(d) of this title.

  Open Office of the Law Revision Counsel, U.S. House of Representatives (opens in a new tab)

• RequirementLitigation costs and attorney fees: in issuing any final order in a section 505 case, the court may award costs of litigation - including reasonable attorney and expert witness fees - to any prevailing or substantially prevailing party, whenever it determines the award is appropriate. If a temporary restraining order or preliminary injunction is sought, the court may require a bond or equivalent security under the Federal Rules of Civil Procedure.

  33 U.S.C. 1365(d) [8]
  Show the source text

  The court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any prevailing or substantially prevailing party, whenever the court determines such award is appropriate. The court may, if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with the Federal Rules of Civil Procedure.

  Open Office of the Law Revision Counsel, U.S. House of Representatives (opens in a new tab)

• ProcessVenue, intervention and settlement review: a suit about a discharge source may be brought only in the federal judicial district where the source is located; EPA may intervene as of right; the plaintiff must serve a copy of the complaint on the U.S. Attorney General and the EPA Administrator; and no consent judgment may be entered in a case to which the United States is not a party until 45 days after the Attorney General and the Administrator receive a copy of the proposed consent judgment.

  33 U.S.C. 1365(c)(1)-(3) [8]
  Show the source text

  may be brought under this section only in the judicial district in which such source is located. (2) In such action under this section, the Administrator, if not a party, may intervene as a matter of right. ... the plaintiff shall serve a copy of the complaint on the Attorney General and the Administrator. No consent judgment shall be entered in an action in which the United States is not a party prior to 45 days following the receipt of a copy of the proposed consent judgment by the Attorney General and the Administrator.

  Open Office of the Law Revision Counsel, U.S. House of Representatives (opens in a new tab)

Older unpermitted work: time limits, tolling agreements and later owners

Unless an Act of Congress provides otherwise, an action to enforce a civil fine, penalty or forfeiture must be started within five years from the date the claim first accrued, if within that period the offender or the property is found within the United States so that proper service can be made (28 U.S.C. 2462). [9]

Separately, Corps rules say that no appeal of an approved jurisdictional determination tied to unauthorized activity or to an after-the-fact permit application will be accepted unless and until the applicant has furnished a signed statute-of-limitations tolling agreement, and that an after-the-fact applicant signs such an agreement in exchange for the Corps' acceptance of the application. Anyone who files such an appeal, or applies for an after-the-fact permit that the Corps accepts and evaluates, thereby agrees that the statute of limitations for any associated violation is suspended until one year after the final Corps decision on the application (or, if there is an administrative appeal, one year after the final Corps decision as defined in 33 CFR 331.10, whichever is later); the regulation does not name 28 U.S.C. 2462. [5]

Under the Corps' appeal rules, an appeal of an approved jurisdictional determination tied to unauthorized activity will normally not be accepted unless the Corps accepts an after-the-fact permit application (in rare cases the district engineer may accept such an appeal in the interests of justice, fairness and administrative efficiency), and no such appeal is accepted if the matter has been referred to the Justice Department or EPA or EPA has, or has requested, the lead enforcement authority. A party whose appeal is found to lack merit remains subject to any civil, criminal and administrative penalties as provided by law. [28]

EPA's order to Andrew Johnson in Wyoming (described above) and its Colorado consent order (described below) both state that each day the discharges remain in place without the required permit (or permits) is an additional day of violation, and in a 2009 brief in the Region 4 penalty case described below, EPA cited a 1993 Fourth Circuit decision (Sasser) as finding that, for calculating penalties, every day unauthorized fill remains in place is a separate day of violation. [15][29][30]

The Corps' rule on corrective-measure orders (33 CFR 326.3(d)(1)) says the district engineer should issue them to "the parties responsible for the violation", but the regulation does not define that term or say whether a later owner who did not place the fill is one. In a 2006 EPA Region 8 consent order, EPA described the activities required of the later owners of a Mineral County, Colorado property as "remedial, not punitive"; the order required them to record a Conservation Restriction of Deed and, if they transferred or leased part of a restoration or mitigation site before fulfilling their obligations, to give the transferee or lessee the order and mitigation plan at least 30 days in advance. EPA's docket lists the matter as closed on February 22, 2017. [5][29][31]

In a 2009 brief in an EPA Region 4 penalty case, EPA argued that illegal fill does not render later unauthorized fill legal or change the status of waters of the United States, and that the site remained a jurisdictional wetland even if part of it had been filled before the respondent owned it. The docket lists a consent agreement and final order filed January 7, 2010 as the last filing. [30][32]

• TimelineThe general federal five-year limit on penalty actions: unless an Act of Congress provides otherwise, an action for the enforcement of any civil fine, penalty or forfeiture must be commenced within five years from the date when the claim first accrued, if within that period the offender or property is found within the United States so that proper service may be made.

  28 U.S.C. 2462 [9]
  Show the source text

  Except as otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued if, within the same period, the offender or the property is found within the United States in order that proper service may be made thereon.

  Open Office of the Law Revision Counsel, U.S. House of Representatives (opens in a new tab)

• RequirementCorps tolling agreements for after-the-fact permits and JD appeals: no appeal of an approved jurisdictional determination (JD) associated with an unauthorized activity or after-the-fact (ATF) permit application will be accepted unless and until the applicant has furnished a signed statute-of-limitations tolling agreement. Any person who appeals such a JD, or applies for an ATF permit that the Corps accepts and evaluates, 'thereby agrees' that the statute of limitations for any associated violation is suspended until one year after the final Corps decision (33 CFR 331.10), and must also memorialize that agreement by signing an agreement to that effect in exchange for the Corps' acceptance of the ATF application and/or any administrative appeal. The regulation says 'the statute of limitations' without naming 28 U.S.C. 2462.

  Applies when: A pond or dam was built without a required section 404 permit and the owner seeks an after-the-fact permit or appeals the Corps' jurisdictional determination. 33 CFR 326.3(e)(1)(v) [5]
  Show the source text

  No appeal of an approved jurisdictional determination (JD) associated with an unauthorized activity or after-the-fact permit application will be accepted unless and until the applicant has furnished a signed statute of limitations tolling agreement ... thereby agrees that the statute of limitations regarding any violation associated with that application is suspended until one year after the final Corps decision ... by signing an agreement to that effect, in exchange for the Corps acceptance of the after-the-fact permit application, and/or any administrative appeal

  Open eCFR (Office of the Federal Register / GPO) (opens in a new tab)

• RequirementThe appeal regulations say the same: an appeal of an approved JD associated with unauthorized activities will normally not be accepted unless the Corps accepts an after-the-fact permit application (in rare cases the district engineer may accept one in the interests of justice, fairness and administrative efficiency), and no such appeal is accepted if the matter has been referred to DOJ or EPA or EPA has, or has requested, the lead enforcement authority. A party whose appeal is found to lack merit remains subject to civil, criminal and administrative penalties. Anyone who appeals such a JD, or applies for an ATF permit where the application is accepted and processed by the Corps, thereby agrees that the statute of limitations is tolled until one year after the final Corps decision.

  33 CFR 331.11 (introductory text), (b), (c) [28]
  Show the source text

  will normally not be accepted unless the Corps accepts an after-the-fact permit application. However, in rare cases, the district engineer may accept an appeal ... no such appeal will be accepted if the unauthorized activity is the subject of a referral to the Department of Justice or the EPA ... remains subject to any civil, criminal, and administrative penalties as provided by law. ... where the application is accepted and processed by the Corps, thereby agrees that the statute of limitations ... is tolled until one year after the final Corps decision

  Open eCFR (Office of the Federal Register / GPO) (opens in a new tab)

• RequirementCorps orders go to 'the parties responsible for the violation': when the district engineer decides initial corrective measures are needed for completed unauthorized work, he 'should issue an appropriate order to the parties responsible for the violation.' The regulation does not define responsible parties or say whether a later owner who did not place the fill is one.

  33 CFR 326.3(d)(1) [5]
  Show the source text

  If the district engineer determines as a result of his investigation, coordination, and preliminary evaluation that initial corrective measures are required, he should issue an appropriate order to the parties responsible for the violation.

  Open eCFR (Office of the Federal Register / GPO) (opens in a new tab)

• AgencyEPA's findings in that order: 'Each day the discharges remain in place without the required permits constitutes an additional day of violation' (a finding about the previous owners' discharges), and the activities required of the later owners are 'remedial, not punitive.' The order required the owners to record a Conservation Restriction of Deed in the Mineral County real property records. If they transfer or lease any part of a restoration/mitigation location before fulfilling their obligations, they must give the transferee or lessee a copy of the order and mitigation plan at least 30 days before the transfer or lease; a transfer does not relieve them unless EPA, the owners and the transferee agree in writing.

  In the Matter of Robert E. Cross and Wolf Creek Associates, LLC, EPA Region 8, Docket No. CWA-08-2007-0006, sec. V paras. 31-32, 34; sec. VI paras. 2, 13 [29]
  Show the source text

  by the Daniels into waters'of the United States ... Each day the discharges remain in place without the required permits constitutes an additional day of violation ... remedial, not punitive ... real property records of Mineral County, Colorado, a Conservation Restriction of Deed ... before it has fulfilled its obligations ... provide a copy of this Consent Order and the EPA-approved mitigation plan to the transferee or lessee not less than thirty (30) days prior to the transfer or lease. ... shall not relieve ... unless EPA, Respondents, and the transferee or lessee agree in writing

  Open U.S. EPA Region 8 (EPA Administrative Enforcement Dockets) (opens in a new tab)

• AgencyEPA's position on a later owner who adds fill (EPA Region 4 brief, 2009): responding to a landowner's contention that the site had been filled before he bought it, EPA argued that 'illegal fill does not render subsequent unauthorized fills legal nor does it change the status of' waters of the United States, and that even if part of the site had been filled before his ownership it remained a jurisdictional wetland. EPA also cited Sasser v. Administrator, EPA (4th Cir. 1993) as finding that, for purposes of calculating penalties, every day unauthorized fill remains in place is a separate day of violation.

  In the Matter of Rodney O. Corr, EPA Region 4, Docket No. CWA-04-2008-5508, Complainant's Brief in Support of Motion for Accelerated Decision (Oct. 16, 2009) at 9-10 [30]
  Show the source text

  1993) finding that for ... purposes of calculation of penalties, every day unauthorized fill remains in place is a separate day of violation. ... Respondent appears to argue that because the area was already filled, his addition of fill material is not a violation of the CWA. However, illegal fill does not render subsequent unauthorized fills legal nor does it change the status of Waters if U.S. to non-waters of the U.S. ... Even if the limited portion of the Site had already been filled prior to Respondent's ownership, as previously stated the Site remained a jurisdictional wetland.

  Open U.S. EPA Region 4 (EPA Administrative Enforcement Dockets) (opens in a new tab)

More detail

Open questions to ask the agency

Related guides