180 • Wetlands: Their Use and Regulation 



the agencies make up for each other's deficiencies 

 and create a more vigorous enforcement posture 

 that neither could estabhsh alone (8)." 



The OTA prairie-pothole case study (2), for ex- 

 ample, presents two contrasting State responses to 

 coordination with the Corps on monitoring and en- 

 forcement, which in part reflect these States' capa- 

 bilities to control wetland use. In Minnesota, the 

 State regional network of hydrologists and game 

 wardens detects and reports potential 404 viola- 

 tions. The Minnesota Department of Natural Re- 

 sources also sends the Corps notices of applications 

 for State permits, which gives the Corps an oppor- 

 tunity to determine whether 404 permits are also 

 required. North Dakota, however, has no regional 

 network of State agencies for reporting potential 

 violations, and North Dakota agencies do not in- 

 form the Corps of activities over which the State 

 has jurisdiction and that the Corps may also have 

 authority to regulate under section 404. 



Problems in Monitoring 



Many districts devote most of their efforts to wet- 

 lands in the vicinity of historically navigable waters. 

 While this is the area in which most permit applica- 

 tions originate and which has potentially the most 

 serious violations, such attention has resulted, in 

 some cases, in the lack of attention to permitted 

 activities in inland areas. Inland wetlands that are 

 only periodically innundated receive the least at- 

 tention; in some cases, districts make little effort 

 to verify whether the area is a wetland (4,8).* 



The Corps in Nebraska has been challenged in 

 at least one case on its determination about an area 

 as a wetland. Upon reevaluation, the Omaha Dis- 

 trict concluded that the area in question was in- 

 deed a type I wetland, and 404 authorization was 

 required, although the fill eventually was author- 

 ized under a nationwide permit. 



Another State reported that, owing to the remote- 

 ness of the Corps offices, neither Corps nor FWS 

 personnel cover a large portion of the State and 

 therefore must depend on the State to supply in- 

 formation. "The Corps does not know if compli- 

 ance with section 404 and section 10 is high or low 

 and is not attempting to increase compliance." Sev- 



'Response of Washington State to OTA questionnaire. 



eral States believe that Corps district resources are 

 insufficient to carry out adequate monitoring ef- 

 forts (e.g., Rhode Island, Tennessee). A few dis- 

 tricts indicated that monitoring efforts have been 

 curtailed as a result of budgetary cutbacks. 



Another disincentive to conducting a vigorous 

 monitoring of permitted activities is the knowledge 

 that in most cases, the Justice Department is reluc- 

 tant to prosecute violators, especially if permit viola- 

 tions only involve a few acres. 



Enforcement 



When a permit violation is discovered. Corps dis- 

 tricts have several options. A cease-and-desist order 

 can be issued. For projects that have been initiated 

 without going through the permitting process, ne- 

 gotiations with violators to accept modifications are 

 common. If the project is deemed to be essentially 

 in compliance with environmental guidelines and 

 with minor impacts, it is often granted an after-the- 

 fact permit. Last, the violator can be taken to court, 

 the project dismantled, and fines imposed. Litiga- 

 tion is often favored in cases where permitholders 

 egregiously violate the conditions of their permit. 

 In less serious violations, the permitholder may be 

 required to stop the activity in dispute and to pro- 

 vide mitigation of some sort. 



Generally, every effort is made to resolve viola- 

 tions short of actual prosecution. In many cases, 

 subsequent investigation determines that suspected 

 violations are, in fact, legal activities — e.g., fall- 

 ing under a general permit or not requiring a 404 

 permit. The Corps estimated that in fiscal year 

 1980, 2,273 such cases occurred — 61 percent of the 

 number of violations listed. After-the-fact permits 

 are also common: 872 in fiscal year 1980, or 23 per- 

 cent of violations (13). In many districts, after-the- 

 fact permits are far more common. Twelve districts 

 reported on the OTA survey that over 60 percent 

 of violations receive such permits, and five other 

 districts said that "most" violations are permitted 

 after the fact. 



Finally, violators are not prosecuted if voluntary 

 restoration is made, although restoration is often 

 made under the threat of prosecution. Voluntary 

 restoration or even offsite mitigation may be made 

 in the context of after-the-fact permitting. For ex- 

 ample, in a case in North Carolina, a developer 



