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Enforcement Actions Under Section 404 of the Clean Water Act

Elizabeth A. Mitchell, Water Quality & Wetlands Regulation and Management in the Development of Natural Resources (2002)

The stated purpose of the Clean Water Act (“CWA”) is “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.”2 To achieve this purpose, the CWA prohibits the discharge of a pollutant into waters of the United States by any person without a permit.3 The CWA permits certain discharges of dredged or fill material under Section 404.4 The CWA provides that a Section 404 permit acts as a shield to enforcement actions, as long as the permittee complies with all of the terms of the permit.5 Since the CWA is a strict liability statute, violators may be held liable for unpermitted discharges, regardless of the violator's knowledge of the legal requirements or intent to comply with or violate the law. The CWA does not provide any statutory defenses. The United States Environmental Protection Agency (“EPA”), the Army Corps of Engineers (“Corps”) and the United States Department of Justice (“DOJ”) share enforcement authority under the CWA and its Section 404 Program.

During the past decade, due to concern about the loss of wetlands, enforcement of Section 404 and other CWA provisions has increased. The Corps, EPA and DOJ have pursued violators aggressively, using an array of administrative and judicial enforcement mechanisms. A description of the regulatory authorities' enforcement authority, the enforcement mechanisms available to them and