178 • Wetlands: Their Use and Regulation 



ing and manpower, and in some cases, reflecting 

 internal priorities, many districts cannot or do not 

 effectively monitor the areas under their jurisdic- 

 tion for violations. In particular, relatively few proj- 

 ects are field-checked in many districts for com- 

 pliance with permit conditions after a permit is 

 granted. The Corps authority to take action against 

 unauthorized activities is also limited. Because EPA 

 has greater enforcement authority to take action 

 against unpermitted and therefore illegal discharges 

 of dredged or fill material under sections 301 , 308, 

 and 309, the Corps is often forced to rely on EPA 

 and the Justice Department for obtaining injunc- 

 tions against illegal activities. 



Compliance With the Program 



Two basic types of violations of the 404 program 

 occur: discharge of dredged or fill material without 

 a permit and discharge in violation of conditions 

 placed on permits. According to the Corps, 3,724 

 violations of sections 404 and 10/404 were reported 

 or detected during fiscal year 1980 (13). This figure 

 was not broken down by type of violation. OTA 

 asked districts to estimate the number of violations 

 detected annually involving: 1) permit conditions, 

 and 2) discharging material without a permit. 

 Though percentages varied gready among districts, 

 more than 80 percent of estimated violations overall 

 were of the second category, unpermitted activities. 

 Because there are no requirements to demonstrate 

 that a project qualifies for permitting exemptions, 

 the use of general and nationwide permits may con- 

 tribute to this high percentage of violations from 

 unpermitted activities. 



It is difficult to establish the percentage rate of 

 compliance from this information. If 20 percent of 

 violations concerned violation of permit conditions 

 and the figure given by the Corps is correct, then 

 about 745 such violations took place in fiscal year 

 1980. In that year, 8,013 permits and letters of per- 

 mission were issued, giving a compliance rate of 

 roughly 91 percent. This rate is compatible with 

 the estimates of the four districts reporting percent- 

 ages of compliance to the OTA survey. The per- 

 centage of violations estimated ranged from 1 to 

 15 percent, with a mean of 8 percent, giving a com- 

 pliance rate of 92 percent. The Corps Institute of 

 Water Resources (IWR) report estimated that com- 

 pliance with general permit conditions was 95 per- 



cent (5). The NMFS Southeast region found that 

 of the 80 individual permits that were completed 

 or under way (of 1 10 permits examined), at least 

 58, or 73 percent, complied with permit conditions 

 recommended by NMFS. Rates of compliance for 

 completed projects varied from 100 percent in two 

 districts (Charleston, Savannah) to 36 percent in 

 one district (Mobile) (7). 



The degree of compliance also varies from year 

 to year within each district. For example, although 

 NMFS determined that in 1981 the Charleston Dis- 

 trict had achieved nearly 100-percent compliance 

 with permit conditions, in 1982 NMFS did a similar 

 analysis and discovered that applicants appeared 

 to have disregarded permit conditions in 33 per- 

 cent of the completed, permitted projects that were 

 evaluated. On the other hand, according to the 

 Corps, the percentage of those permitted projects 

 in the Seattle District that deviated from what had 

 been permitted declined from 15 percent in 1980 

 to 8 percent in 1981 and to 4 percent in 1982. This 

 increase in compliance has been attributed to in- 

 creased public awareness of the program and the 

 knowledge that it is being implemented more con- 

 sistently and completely. 



It is not enough, however, to compare the results 

 of such analyses to evaluate the performance of the 

 different districts without knowing the nature of the 

 conditions that are included in the permit. Some 

 districts do not incorporate controversial conditions 

 such as mitigation and compensation measures into 

 the permit. Instead, agreements are made between 

 the applicant and concerned agencies. The Corps 

 does not evaluate whether the agreed-on mitiga- 

 tion has been implemented successfully (10). 



Enforcing wetland regulations can be difficult. 

 In some districts, the Corps sends teams to inves- 

 tigate suspected violations because of threats made 

 to district personnel in wedand cases (4). The most 

 frequent types of noncompliance found by one ob- 

 server were as follows: 



• Unpermitted activities: loose-fill projects (e.g., 

 trash dumping), minor erosion-control projects 

 (bulkheads, riprap), and construction of boat 

 ramps and access roads. Major projects, such 

 as marinas and canal dredging, were rarely 

 undertaken without permits. 



• Violations of permit conditions: failure to per- 

 form sedimentation control (e.g., revegetation, 



