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Enforcing 404 permits

Based on a 1989 Memorandum of Agreement between the Corps and the EPA, the Corps will act as the lead enforcement agency for all violations of Corps-issued permits and for most unpermitted discharge violations. The EPA will act as the lead enforcement agency when an unpermitted activity involves a repeat violator or a flagrant violation, when EPA requests enforcement over a particular case or class of cases, or when the Corps recommends that an EPA administrative penalty action may be warranted.

The lead enforcement agency shall determine, based on its authority, the appropriate enforcement response taking into consideration any views provided by the other agency. An appropriate enforcement response may include an administrative order, administrative penalty complaint, a civil or criminal judicial referral or other appropriate formal enforcement response.

Citizens can play an important role by identifying projects that are not complying with their 404 permit. Document adverse impacts or violations of 401 conditions and notify the Corps, your regional EPA office and the state water quality agency. Citizen suits (Section 505, see Lesson 9: Enforcing the Clean Water Act) are allowed when 401 conditions are not being met. Unfortunately, that means a bad project must commence before you file a 60-day notice.

In addition, some experts argue that citizens can sue a permittee for a lack of a 404 permit when it is required. It can be technically interpreted as a discharge without a permit.