Ch. 8— Limitations of the 404 Program for Protecting Wetlands • 181 



already had cleared approximately 30 acres of bot- 

 tom land hardwood swamp and partially erected 

 a dam to build a lake before the violation was re- 

 ported. In this instance, restoration was so difficult 

 that the developers were open to any other alter- 

 native. To avoid litigation, and at the suggestion 

 of the Wilmington District, the owner of the land 

 purchased a previously unregulated 60-acre Car- 

 olina bay and deeded it to the Nature Conservan- 

 cy. The Corps agreed to take no legal action and 

 then granted an after-the-fact permit. The land- 

 owner could then claim a charitable contribution, 

 and the Nature Conservancy purchased a priority 

 site at less than one-third of its value. Although 

 some lauded this creative resolution of the prob- 

 lem, others in both public agencies and private con- 

 servation groups said the penalty was not appro- 

 priate. They point out that no wooded swampland 

 was restored, although 30 acres were converted. Re- 

 placement of one wetland type for another could 

 set a precedent for the conversion of one wetland 

 type with certain wildlife habitat values, while pre- 

 serving another with different resource and habitat 

 values (9). 



In many districts, most or all violators agree to 

 voluntary restoration.* Some Corps districts may 

 be more successful than others in obtaining volun- 

 tary restoration. One technique used by the Wilm- 

 ington District is to coordinate closely with the U.S. 

 Attorney's Office, which in turn sends a letter to 

 the violator stating that a file has been opened on 

 the case. Such measures add weight to the negotia- 

 tions for voluntary restoration. In some cases, how- 

 ever, such agreements are not made in good faith 

 by violators, and further action must be taken by 

 districts.** In some districts, voluntary restoration 

 takes place in less than a quarter of violations. 



In the opinion of some observers, some Corps 

 districts have been too ready to grant after-the-fact 

 permits or dismiss violations in other ways and too 

 sparing in instituting litigation against violators.*** 



*As stated by one district, "The majority of our violations are re- 

 solved by granting after-the-fact permits. We have not prosecuted any 

 violators. All violators to date have agreed to perform necessary restora- 

 tion work without prosecution" (Albuquerque). 



"As put by another district, "Of those (violators) who agree to 

 restore, a large percentage really have no intention of restoring and 

 will delay indefinitely if allowed to, which cumbersome legal procedures 

 allow them to do (Little Rock). 



'""The Corps seldom takes violators to court. Thus, there is lit- 

 tle deterrent to noncompliance" (Vermont). 



The Corps has experienced significant problems in 

 prosecuting violators. If violators do not respond 

 to Corps orders to cease projects that violate 404 

 standards, districts may request U.S. district at- 

 torneys to prosecute. However, district attorneys 

 are often reluctant to take on 404 cases, regarding 

 them as being of lesser importance than other 

 crimes and, as such, of low priority in the tens of 

 thousands of cases that are handled each year by 

 the Department of Justice. Corps districts file about 

 4 percent of violations with the Justice Department 

 for prosecution. However, outside observers say 

 that many additional cases are never forwarded, 

 in the knowledge that prosecution, especially in 

 smeill cases, is unlikely.* 



Some cases referred to the U.S. Attorney are 

 never resolved, for example, when there is insuffi- 

 cient evidence to convict. According to the Phila- 

 delphia District, personnel turnover is also a big 

 problem in dealing with violations because new per- 

 sonnel may not be familiar enough with a viola- 

 tion to get it resolved. 



Of the cases that are resolved through the U.S. 

 Attorney, penalties may consist of fines, restora- 

 tion, or some combination of the two. One case 

 study revealed some variations in how penalties are 

 handled in two Corps districts. In negotiated set- 

 dements, the Wilmington District generally resolves 

 the violation with both fines and restoration. Fines 

 are assessed based on past violation records and the 

 degree to which restoration is possible. For exam- 

 ple, after its fifth violation in 2 years, Texasgulf 

 Co. voluntarily restored 6.5 acres in the Pamlico- 

 Albermarle estuary at a cost of approximately 

 $200,000 and paid a fine of $5,000. The Charleston 

 District noted that it seldom requires fines. In both 

 North Carolina and South Carolina, courts general- 

 ly have been reluctant to impose fines. When the 

 restoration is costly, courts believe that this alone 

 constitutes an adequate penalty. Penalties and at- 

 torneys' fees are typically viewed as a cost of do- 



*One study concluded that "A major finding of the Urban Institute 

 Study with respect to enforcement practice is that a substantial dis- 

 junction exists between detection of violations and effective legal fol- 

 lowup. The record of administrative-prosecutorial cooperation revealed 

 by our study is quite poor. While there are a few well-known cases 

 of outstanding coordination between U.S. Attorneys and the Corps 

 . . . U.S. Attorneys have not accepted wetlands cases as a major pri- 

 ority . . . many cases that can and should be prosecuted either fall 

 between the cracks or are handled by default on an 'after-the-fact per- 

 mit' basis." Rosenbaum (15). 



