182 • Wetlands: Their Use and Regulation 



ing business, according to another case study, and 

 restoration requirements are crucial to an effective 

 program. If restoration is imposed, then the violator 

 stands to gain nothing. Some districts are often re- 

 luctant to prosecute offenders. Because Corps per- 

 sonnel do not see themselves as policemen, the 

 monitoring and enforcement aspects of the program 

 are unattractive. 



However, personnel from several agencies and 

 interest groups think that fines should be imposed 

 in addition, because restoration often doesn't re- 

 place the original resource. They also think that 

 fines should be large enough to serve as a deterrent. 



Districts differ markedly in the number of cases 

 they submit for litigation and in the results of pros- 

 ecution. At least five districts said they did not sub- 

 mit any violations for prosecution in the 1980-82 

 period. A few districts said litigation produced good 

 results.* More districts were frustrated by lack of 

 action from the Justice Department, low fines or 

 lack of restoration ordered by courts, or slowness 

 in the legal process. As stated by one, "The legal 



"'The results from prosecutions have been excellent. Consent 

 decrees have obtained restoration on numerous cases and civil penalties 

 from $500 to $10,000" (Norfolk). 



system affords very low-priority service, and be- 

 cause of extensive delays and frustrations, we seek 

 other solutions." 



One technique is for the Corps to coordinate its 

 enforcement efforts with those of a State program. 

 For example, the Baltimore District reported in an 

 interview with OTA that for cases in which volun- 

 tary restoration was not successful and after-the-fact 

 permits not appropriate, the State could prosecute 

 under the State wetlands law more readily than the 

 Corps could obtain court assistance under section 

 404. Coordination with the State is enhanced with 

 monthly enforcement conferences. State programs 

 with administrative law judges, as in New York, are 

 able to handle some 404 violations expeditiously. 



However, State enforcement may also be prob- 

 lematic. The Philadelphia District had difficulties 

 when New Jersey took the lead on enforcement 

 because of slowness or reluctance by the State At- 

 torney General. Florida is considered to be less 

 equipped than the Federal Government to prose- 

 cute some wetland cases owing to the lack of exper- 

 ience of the State's legal staff and lack of funds to 

 hire expert witnesses and to conduct site-specific 

 fieldwork required to prepare solid professional 

 opinions. 



CHAPTER 8 REFERENCES 



1. Center for Governmental Responsibility, "Wet- 

 lands Loss in South Florida and the Implementa- 

 tion of Section 404 of the 'Clean Water Act,' " 

 University of Florida College of Law, contract study 

 for OTA, September 1982. 



2. Department of Agricultural Economics, "Wetlands 

 in the Prairie Pothole Region of Minnesota, North 

 Dakota, and South Dakota — Trends and Issues," 

 North Dakota State University, contract study for 

 OTA, August 1982. 



3. ESA/Madrone, "Wetlands Policy Assessment: Cal- 

 ifornia Case Study," contract study for OTA, Sep- 

 tember 1982. 



4. Great Plains Office of Policy Studies, "Wetland 

 Trends and Protection Programs in Nebraska," 

 University of Nebraska, contract study for OTA, 

 September 1982. 



5. Institute of Water Resources, Impact Analysis of 

 the Corps' Regulatory Program, unpublished re- 

 port, 1981, p. 215. 



6. JACA Corp., "A Case Study of New Jersey Wet- 

 lands Trends and Factors Influencing Wetlands 

 Use," contract study for OTA, September 1982. 



7. Lindall, W. N., Jr., and Thayer, G. W., "Quan- 

 tification of National Marine Fisheries Service 

 Habitats Conservation Efforts in the Southeast 

 Region of the United States," Marine Fisheries Re- 

 view, vol. 44, No. 2, 1982, pp. 18-22. 



8. Rosenbaum, Nelson, "Enforcing Wetlands Regula- 

 tions," in Wetland Functions and Values: The State 

 of Our Understanding, P. E. Greeson, J. R. Clark, 

 and J. E. Clark (eds.), American Water Resources 

 Conservation, Minneapolis, Minn., 1979, pp. 

 44-49. 



