U.S. ENVIRONMENTAL PROTECTION AGENCY 

OFFICE OF INSPECTOR GENERAL 

Catalyst for Improving the Environment 

 Evaluation Report 

EPA Needs a Better Strategy to 

Identify Violations of Section 404 

of the Clean Water Act 

 Report No. 10-P-0009 

 October 26, 2009 
Report Contributors: Ira Brass 

 Dan Engelberg 

 Byron Shumate 

 Danielle Tesch 

André von Hoyer II 

 Michael Wagg 

Abbreviations 

§404 Section 404 of the Clean Water Act 

Corps U.S. Army Corps of Engineers 

CWA Clean Water Act 

EPA U.S. Environmental Protection Agency 

FLA Field Level Agreement 

FWS U.S. Fish and Wildlife Service 

FY Fiscal Year 

MOA Memorandum of Agreement 

NRCS Natural Resources Conservation Service 

OECA Office of Enforcement and Compliance Assurance 

OIG Office of Inspector General 

OWOW Office of Wetlands, Oceans, and Watersheds 

Cover photos:	 From left to right: A cooter turtle in Juniper Creek, Ocala National Forest, 

Florida; a great egret in Robinson Bayou, Panama City, Florida; and 

pickerelweeds in Juniper Creek, Ocala National Forest, Florida. 

(EPA OIG photos) 
U.S. Environmental Protection Agency 10-P-0009 

October 26, 2009 Office of Inspector General 

At a Glance
 

Catalyst for Improving the Environment 

Why We Did This Review 

We conducted this evaluation 

to assess the U.S. 

Environmental Protection 

Agency’s (EPA’s) 

effectiveness at identifying 

violations of the Clean Water 

Act (CWA) Section 404 

(§404) that fall under its 

enforcement authority. 

CWA §404 regulates the 

discharge of dredged or fill 

material into wetlands and 

surface waters. 

Background 

Wetlands, lakes, streams, and 

other surface waters provide a 

variety of benefits, including 

pollution reduction, flood 

protection, erosion control, 

and critical habitat for 

wildlife. EPA has the lead 

enforcement role for flagrant 

or repeat violations involving 

cases where the violator has 

not applied for a valid §404 

permit from the U.S. Army 

Corps of Engineers. 

For further information, 

contact our Office of 

Congressional, Public Affairs 

and Management at 

(202) 566-2391. 

To view the full report, 

click on the following link: 

www.epa.gov/oig/reports/2010/ 

20091026-10-P-0009.pdf 

EPA Needs a Better Strategy to Identify 

Violations of Section 404 of the Clean Water Act

 What We Found 

EPA lacks a systematic framework for identifying the §404 violations for which it is 

responsible under a 1989 Memorandum of Agreement. Primarily because of its 

limited field presence related to §404 violations, EPA identifies violations through a 

passive, reactive method of relying on complaints and referrals from external 

sources. An incomplete national data system and sporadic coordination with federal 

and State partners further impair EPA’s ability to maintain an effective §404 

enforcement program. 

EPA must develop a framework that includes a §404 enforcement strategy that 

includes such elements as: increased communication/coordination with 

enforcement partners, a system to track repeat and flagrant violators, performance 

measures, and cross-training. Without an effective framework or strategy, EPA 

cannot be assured that it is sufficiently protecting wetlands and other surface waters 

from §404 violations involving dredged or fill activity. Further, the current system 

does not provide EPA with the necessary inputs to make informed decisions about 

the allocation of resources for §404 enforcement. 

What We Recommend 

We recommend that the Assistant Administrator for Enforcement and Compliance 

Assurance, in consultation with the Assistant Administrator for Water, develop and 

implement a comprehensive CWA §404 enforcement strategy addressing issues 

discussed in this report (such as communication with enforcement partners and a 

system to track violations). We also recommend that the Deputy Administrator 

revise the 1989 Memorandum of Agreement in collaboration with the Assistant 

Secretary of the Army for Civil Works. 

The Agency agreed to develop and implement a comprehensive CWA §404 

enforcement strategy. Although the Agency believes the enforcement strategy will 

clarify how it collaborates with the U.S. Army Corps of Engineers and processes 

referrals, and therefore may not require the 1989 Memorandum of Agreement be 

revised, we retained the second recommendation because we still believe this 

agreement should be revised. We consider both recommendations undecided. 
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 20460 

Assistant Inspector General for Program Evaluation 

OFFICE OF 

INSPECTOR GENERAL 

October 26, 2009 

MEMORANDUM 

SUBJECT: EPA Needs a Better Strategy to Identify Violations of Section 404 

of the Clean Water Act 

 Report No. 10-P-0009 

FROM: Wade T. Najjum 

TO: Scott C. Fulton 

 Acting Deputy Administrator 

Cynthia Giles 

Assistant Administrator for Enforcement and Compliance Assurance 

Peter S. Silva 

Assistant Administrator for Water 

This is our report on the subject evaluation conducted by the Office of Inspector General (OIG) 

of the U.S. Environmental Protection Agency (EPA). This report contains findings that describe 

the problems the OIG has identified and corrective actions the OIG recommends. This report 

represents the opinion of the OIG and does not necessarily represent the final EPA position. 

Final determinations on matters in this report will be made by EPA managers in accordance with 

established resolution procedures. 

The estimated cost of this report – calculated by multiplying the project’s staff days by the 

applicable daily full cost billing rates in effect at the time – is $998,055. 

Action Required 

In accordance with EPA Manual 2750, you are required to provide a written response to this 

report within 90 calendar days. You should include a corrective actions plan for agreed-upon 

actions, including milestone dates. We have no objections to the further release of this report to 

the public. This report will be available at http://www.epa.gov/oig. 

If you or your staff have any questions, please contact Dan Engelberg at (202) 566-0830 or 

engelberg.dan@epa.gov, or Ira Brass at (212) 637-3057 or brass.ira@epa.gov. 
EPA Needs a Better Strategy to Identify Violations 10-P-0009 

of Section 404 of the Clean Water Act 

Table of Contents 

Chapters 

1 Introduction ....................................................................................................... 1 

Purpose ...................................................................................................... 1 

Background ................................................................................................. 1 

 Noteworthy Achievements .......................................................................... 4 

 Scope and Methodology ............................................................................. 4 

2 EPA Lacks a Unified Framework to Manage the Section 404 

 Enforcement Program........................................................................................ 6 

EPA’s Identification of §404 Violators Needs to Be More Systematic ........ 6 

EPA Must Improve Coordination with Enforcement Partners ..................... 8 

Jurisdictional Uncertainty Has Further Impaired EPA’s Ability 

to Address §404 Violations.............................................................. 10 

Conclusion .................................................................................................. 11 

 Recommendations ..................................................................................... 11 

Agency Response and OIG Evaluation ...................................................... 11 

Status of Recommendations and Potential Monetary Benefits.............................. 14 

Appendices 

A Details on Scope and Methodology.................................................................. 15 

B Agency Response ............................................................................................. 18 

C Distribution ........................................................................................................ 24
 
10-P-0009 

Chapter 1

Introduction 

Purpose 

We conducted this review to assess the U.S. Environmental Protection Agency’s 

(EPA’s) enforcement role in protecting federally regulated wetlands, streams, and 

other surface waters under Section 404 (§404) of the Clean Water Act (CWA). 

CWA §404 regulates the discharge of dredged or fill material into “waters of the 

United States,” including wetlands and other surface waters. We focused on §404 

enforcement because EPA has direct responsibility for certain types of §404 

violations. We sought to answer the following question: How effective is EPA at 

identifying violations of §404 of the CWA that fall under its enforcement 

authority? 

Background 

Wetlands are among the Nation’s most important natural resources. They provide 

a variety of benefits, such as pollutant reduction/removal, flood protection, 

shoreline erosion control, carbon sequestration, and ground water recharge. As 

primary habitats for fish, waterfowl, and wildlife, they are economically 

important and provide numerous opportunities for education, recreation, and 

research. 

The U.S. Fish and Wildlife 

Service (FWS) estimated that 

the continental United States had 

approximately 221 million acres 

of wetlands in the 1780s. By the 

mid-1980s, 117 million wetland 

acres had been lost; only 

approximately 104 million acres 

remained (a 53 percent loss of 

original wetlands area). Within 

this timeframe, 22 States lost 

more than 50 percent of their 

wetlands area; 10 of these States 

lost more than 70 percent (see 

Table 1-1).

Little blue heron in Juniper Creek, Ocala National Forest, Florida. 

(EPA OIG photo) 

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10-P-0009 

Table 1-1: Wetland Loss by State, 1780s–1980s 

State 

% Original 

Wetlands 

Lost State 

% Original 

Wetlands 

Lost State 

% Original 

Wetlands 

Lost 

Alabama 50 Louisiana 46 Ohio 90 

Alaska 0.1 Maine 20 Oklahoma 67 

Arizona 36 Maryland 73 Oregon 38 

Arkansas 72 Massachusetts 28 Pennsylvania 56 

California 91 Michigan 50 Rhode Island 37 

Colorado 50 Minnesota 42 South Carolina 27 

Connecticut 74 Mississippi 59 South Dakota 35 

Delaware 54 Missouri 87 Tennessee 59 

Florida 46 Montana 27 Texas 52 

Georgia 23 Nebraska 35 Utah 30 

Hawaii 12 Nevada 52 Vermont 35 

Idaho 56 New Hampshire 9 Virginia 42 

Illinois 85 New Jersey 39 Washington 31 

Indiana 87 New Mexico 33 West Virginia 24 

Iowa 89 New York 60 Wisconsin 46 

Kansas 48 North Carolina 49 Wyoming 38 

Kentucky 81 North Dakota 49 

Source: Dahl, T.E. 1990. Wetlands Loses in the United States 1780’s to 1980’s. 

U.S. Department of the Interior, FWS. 

Federal Regulation and Enforcement 

With the 1972 passage of the CWA, the Federal Government began to regulate 

the discharge of dredged or fill material into navigable waters, including wetlands 

and other surface waters. Discharges of 

dredged or fill material occur most 

frequently from development activities (e.g., 

residential, commercial, or municipal), 

infrastructure improvements (e.g., highways, 

dams, and airports), mining projects, and 

nonexempt agricultural activities. The CWA 

gives EPA and the U.S. Army Corps of 

Engineers (Corps) the ability to take 

enforcement actions against those who 

violate §404. The Assistant Secretary of 

the Army for Civil Works oversees the 

Corps’ regulatory program. 

Within EPA, two offices share responsibilities for protecting wetlands. EPA’s 

Office of Water, through its Office of Wetlands, Oceans, and Watersheds 

(OWOW), makes determinations on the scope of geographic jurisdiction and 

exemptions, develops regulations governing the environmental factors the Corps 

must consider when evaluating permit applications, and approves State and tribal 

Fill from surface mining operations 

may be discharged into surface waters 

or wetlands. (EPA Region 3 photo) 

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10-P-0009 

assumption of the §404 program. EPA’s Office of Enforcement and Compliance 

Assurance (OECA) enforces violations of the CWA, including violations of §404. 

The Corps makes most §404 permit decisions, but in certain instances OWOW 

can elevate or veto these decisions. 

EPA shares §404 enforcement responsibilities with the Corps under a 1989 

Memorandum of Agreement (MOA). EPA has the lead enforcement role in a 

limited number of cases, including: (1) unpermitted activities that involve repeat 

violators, (2) flagrant violations, (3) where EPA requests a class of cases or a 

particular case, or (4) where the Corps determines that an EPA administrative 

penalty action is warranted. The Corps has the lead enforcement role in all other 

unpermitted cases and in all cases where there is a violation of a §404 permit. In 

the 1989 MOA, EPA and the Corps agreed to: 

•	 Enter into interagency agreements with other federal, State, tribal, and 

local agencies that will provide assistance to the Corps and EPA in pursuit 

of §404 enforcement activities. 

•	 Enter into field level agreements (FLAs) between Corps division or 

district offices and their respective EPA regional offices to more 

specifically implement the 1989 MOA’s provisions. 

•	 Where available, exchange data that would enhance either agency’s 

enforcement efforts. 

•	 Begin developing a computerized list of persons who have received 

after-the-fact permits or been subject to a §404 enforcement action. 

Although OECA Headquarters formally administers and manages EPA’s portion 

of the federal §404 enforcement program, enforcement work is performed by 

regional staff. OECA states in its National Program Managers Guidance that 

regions should: 

•	 Have a process for identifying, targeting, inspecting, and otherwise 

responding to illegal activities in wetlands; and 

•	 Coordinate, as appropriate, with other federal agencies that have 

significant roles in wetlands protection through the use of memoranda of 

understanding and memoranda of agreement (e.g., the Corps, FWS, etc.). 

The regions learn of possible §404 violations in various ways, including referrals 

from the Corps or other regulatory agencies and tips from concerned citizens. 

Once the regions receive a complaint, they must determine whether it actually 

involves an activity that would be regulated under §404. If they find the activity 

to be a §404 violation, they will then work with the Corps to determine which 

agency will take the lead for that particular case. Once that determination is 

made, the lead agency will initiate an enforcement action. 

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State-level Enforcement 

Michigan and New Jersey are the only States that are authorized to implement the 

§404 program; they may prosecute §404 violations under State law. In addition, 

29 States supplement federal §404 enforcement with varying degrees of Statelevel wetlands enforcement. The remaining 19 States lack State-level 

enforcement and rely on the Federal Government for wetlands enforcement. 

States have indicated they have not pursued program authorization because their 

programs are not equivalent to the federal program and they lack federal funds for 

implementation. States are also concerned about coordinating with FWS and the 

National Marine Fisheries Service on threatened/endangered species issues. 

Noteworthy Achievements 

Individual EPA regions have made some strides toward better identification of 

§404 violations. For example, during regular meetings with the St. Paul Corps 

District, Region 5 staff discuss which violations would be good candidates for 

referral to the Region under the 1989 MOA. By tracking the Corps’ enforcement 

actions (notably Notices of Violation or Cease and Desist Orders), Region 5 

officials also find out about potential repeat violators in districts that do not 

typically refer §404 violations to EPA. Region 3, meanwhile, uses the Civil Air 

Patrol to provide aerial support services for the §404 program. 

EPA staff in Regions 1, 3, 4, 7, and 8 reported that they have used construction 

stormwater (CWA §402) inspections to identify §404 violations. Regions 1 and 7 

use inspection checklists that allow their inspectors to identify violations of both 

§402 and §404. Stormwater inspectors’ reports were the foundation for two of the 

§404 enforcement actions that Region 7 pursued in 2008. 

Scope and Methodology 

We conducted this review in accordance with generally accepted government 

auditing standards. Those standards require that we plan and perform the 

evaluation to obtain sufficient, appropriate evidence to provide a reasonable basis 

for our findings and conclusions based on our objectives. We believe that the 

evidence obtained provides a reasonable basis for our findings and conclusions 

based on our objectives. We performed our review from May 2008 to August 

2009. 

We used a variety of methods to evaluate EPA’s effectiveness at identifying 

unauthorized violations of §404 under its enforcement authority as outlined in the 

1989 MOA. We reviewed CWA §§309, 401, and 404; EPA and Corps policies 

and guidance documents; and current FLAs between EPA regions and Corps 

districts. We also reviewed the MOAs between EPA Regions 2 and 5 and the two 

States that can implement the §404 program (New Jersey and Michigan). 

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We sent a brief information request to all 10 EPA regions. We conducted 

interviews with personnel from EPA Headquarters and six regions, Corps 

Headquarters and eight districts, FWS Headquarters, and the Natural Resources 

Conservation Service (NRCS) Headquarters. We visited six States, two water 

management districts in Florida, and a State association for conservation 

commissioners. During our interviews, we discussed internal controls regarding 

identification and tracking of unauthorized violations, as well as communication 

and collaboration with federal and State partners. 

We also judgmentally selected 59 final enforcement actions from EPA’s 

Enforcement and Compliance History Online database for further review during 

interviews with EPA regional staff. We did not independently verify the accuracy 

or reliability of data provided by the database. We did not review the selected 

final enforcement actions in EPA’s internal enforcement database, the Integrated 

Compliance Information System. 

There have been no recent OIG reports on §404 enforcement issues. 

Further details on our scope and methodology are in Appendix A. 

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Chapter 2

EPA Lacks a Unified Framework to Manage the 

Section 404 Enforcement Program 

EPA lacks a systematic framework for identifying §404 violations for which it is 

responsible under the1989 MOA. Primarily because of a limited field presence 

related to §404 violations, EPA identifies violations through a passive, reactive 

method of relying on complaints and referrals from external sources. An 

incomplete national data system and sporadic coordination with federal and State 

partners further impair EPA’s ability to maintain an effective §404 enforcement 

program. EPA must develop a framework that includes a §404 enforcement 

strategy that includes increased communication/coordination with enforcement 

partners, a system to track repeat and flagrant violators, performance measures, 

and cross-training. Without an effective framework or strategy, EPA cannot be 

assured that it is sufficiently protecting wetlands and other surface waters from 

§404 violations involving dredged or fill activity. Further, the current system 

does not provide EPA with the necessary inputs to make informed decisions about 

the allocation of resources for §404 enforcement. 

EPA’s Identification of §404 Violators Needs to Be More Systematic 

Although OECA’s Fiscal Year (FY) 2010 National Program Managers Guidance 

states that EPA should have a process for identifying illegal activities in wetlands, 

EPA has no strategy beyond the 1989 MOA. This is in contrast with other CWA 

programs – such as stormwater and combined/sanitary sewer overflows – for 

which OECA has developed specific enforcement strategies. In the absence of a 

§404-specific strategy, EPA relies on external sources for information about 

violations, particularly the Corps. The Corps also only primarily learns about 

§404 violations through external sources, often from private citizens. 

Additionally, current reporting mechanisms do not always inform EPA of whether 

someone has repeatedly violated State-level wetlands protection laws. 

EPA Relies on External Sources for Violation Knowledge 

In part because of its limited field presence, all of the regions interviewed 

primarily relied on complaints, tips, and referrals to learn about §404 violations. 

For example, for Region 1 during FYs 2004-2008, citizen complaints accounted 

for 59 percent of reported violations, other government sources accounted for 

28 percent, unknown sources accounted for 10 percent, and EPA itself only 

accounted for 3 percent. 

EPA receives more referrals from the Corps than any other regulatory agency. 

For example, the Corps supplied Region 4 with 86 percent of the §404 violations 

the Region pursued in FYs 2004-2008. During the same period, every Region 8 

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§404 enforcement action was the result of a Corps referral. The Corps itself takes 

a reactive approach toward identifying violations, relying primarily on complaints 

and referrals from external sources. Citizen complaints are the primary source for 

violation information in six of the eight Corps districts interviewed and a major 

source of information in the other two districts. If the Corps identifies a violation 

itself, it tends to occur randomly while checking for permit compliance. 

Only those States that implement the CWA §404 program (Michigan and New 

Jersey) must report their wetlands compliance and enforcement activities to EPA. 

Michigan lists violations of greater than 1 acre (including the violator’s name) in 

its annual report to EPA. For FYs 2006-2008, Michigan reported 2,236 violations 

of Parts 301 and 303 of its Natural Resources and Environmental Protection Act, 

the State equivalent of §404. 

The 29 States that supplement §404 with State enforcement are not authorized to 

implement the CWA §404 program or obligated to report their program activities 

to either EPA or the Corps. Nevertheless, several States publish their annual 

wetland enforcement statistics. Some State annual reports, such as those for 

Maryland, New Hampshire, and Maine, list wetland violators by name, providing 

both EPA and the Corps with a list of potential repeat violators. However, during 

field work interviews, no EPA regional staff stated they use these reports to 

identify possible §404 cases. 

While the Corps’ regulatory database may contain a violator’s past history, that 

history may not include all State-level enforcement activity. In April 2009, the 

Corps’ Green Bay field office was notified of a possible violation. However, it 

was only after the Corps had consulted with the Wisconsin Department of Natural 

Resources that it learned the State had already pursued an enforcement action in 

2005 against the responsible party. There was no record of the State enforcement 

action in the Corps’ regulatory database. 

EPA Lacks Processes and Tools to Identify Repeat §404 Violators 

EPA’s enforcement database does not provide complete §404 violation histories. 

Because EPA lacks a systematic approach to assessing a violator’s prior §404 

enforcement history, it may not be able to identify all repeat §404 violators, 

especially if they are smaller operators. To confirm whether violators have been 

subject to §404 orders in other regions, staff in Regions 3 and 8 have had to 

contact staff in other regions. 

Moreover, EPA staff cannot directly access the Corps’ enforcement records. 

While OWOW is developing an interface with the Corps’ national regulatory 

database, that interface will provide EPA staff with CWA permit and 

jurisdictional data. EPA enforcement staff will still need to ask Corps staff to 

query respondent violation histories on their behalf. 

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EPA Must Improve Coordination with Enforcement Partners 

EPA must improve its coordination with its §404 enforcement partners. In the 

absence of detailed national guidance on §404 referrals, EPA regions rely on 

FLAs with Corps districts. The FLAs vary both in content and the degree to 

which they are implemented, creating inconsistencies in the referral process. 

When EPA has agreements with other federal agencies, such as FWS and NRCS, 

they are often temporary or unclear. Additionally, the enormous variation in State 

wetlands enforcement programs complicates coordination efforts. 

EPA Needs to Increase Coordination with the Corps 

EPA and the Corps lack detailed procedural guidance on §404 case referrals. The 

1989 MOA provides only general details on which cases should be referred to 

EPA – specifically, “repeat or flagrant” violations where the violator is not 

covered by a §404 permit. Most regions have not developed a standard referral 

process with their corresponding Corps districts. Instead, the current process 

consists of informal collaboration agreements and personal relationships between 

EPA and Corps staff. As a result, the rationale for referring cases to EPA, as well 

as the quality of referral packages, varies from district to district. 

Officials in four of the eight interviewed Corps districts said that while the criteria 

in the 1989 MOA are evaluated and considered in referral decisions, they 

generally only refer violations to EPA if in-house resolution fails. When there is 

a violation of a permitted project, three of the interviewed districts determine 

whether to refer the violation to EPA based on the impact compared with the 

project’s original scope, while two other districts regard these activities strictly as 

violations of the §404 permit and resolve them in-house. 

In an effort to more specifically implement the 1989 MOA’s limited referral 

guidance, EPA regions have finalized supplemental FLAs with 21 of the 38 Corps 

districts (Region 1 is included but abides by an unsigned FLA). Region 4’s FLA 

with the Jacksonville Corps District requires that the lead agency status be 

determined within 15 days of the original notification of violation letter. In 

contrast, according to the Memorandum of Understanding between Region 5 and 

the St. Paul Corps District, the Region has 134 days to determine whether it wants 

to accept a referral. If a violator applies for an after-the-fact permit during this 

period when it is unclear which agency has lead enforcement status, the District 

may need to initiate a review of the permit application. 

EPA and the Corps differ in how they implement their FLAs. For example, in 

Region 4, the quantity and quality of enforcement referrals vary significantly 

between the five Corps districts with which it has FLAs. Some of the FLAs lack 

a requirement for Corps districts to report unauthorized violations to EPA regions 

and a standardized explanation of the referral process. Although the Region has 

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FLAs with the Vicksburg and Mobile Corps Districts, Region 4 staff reported that 

both Districts have essentially stopped sending referrals. 

EPA Needs to Increase Coordination with Other Federal Agencies 

Coordination with federal agencies other than the Corps that have wetlandsrelated programs would provide EPA with additional resources in the field and 

save resources when developing enforcement cases. For example, Region 3 has 

an interagency agreement with one FWS field office on identifying wetlands 

violations. The FWS field office reports any potential violations to the Region 

and inspects violations reported to the field office by EPA, the State, the public, 

and other organizations. In one case, FWS employees discovered and 

investigated two different violations on the same property. Other regions have 

entered into similar interagency agreements with FWS, but they are often 

temporary and expire when funding to support the agreements runs out. 

Lack of coordination with NRCS has created uncertainty about the types of 

information the agency can share with EPA. As part of a 1994 MOA between 

EPA, the Corps, FWS, and NRCS, the agencies agreed that EPA and the Corps 

would rely on wetlands determinations made by NRCS on agricultural lands for 

the purposes of determining §404 jurisdiction. A 2002 amendment of the Farm 

Security and Rural Investment Act prohibited NRCS from sharing confidential 

producer information, including wetlands delineations and determinations, to 

agencies outside the U.S. Department of Agriculture. As a result of these 

amendments, NRCS and the Corps both withdrew from this MOA in January 

2005 and signed a separate bilateral agreement in February 2005. In November 

2005, NRCS issued a directive indicating its staff could release the following 

information to the public and federal, State, and local agencies or entities: 

• Maps or aerial photographs showing wetland locations/boundaries; 

• Site visit reports and documentation of site conditions prepared by NRCS; 

• Wetland determination data sheets prepared by NRCS; and 

• Technical determinations (e.g., functional assessments) made by NRCS. 

Recent changes in legislation and NRCS policy created additional uncertainty 

about whether NRCS field offices can share this information. NRCS currently 

interprets the 2008 Farm Bill as prohibiting the release of wetlands delineations 

and determinations to agencies outside the U.S. Department of Agriculture.1 EPA 

must now contact the landowner directly for this information. The landowner can 

either give NRCS permission to release this information to EPA, release the 

information directly to EPA, or deny permission to release the information. 

Enforcement staff from Regions 1, 4, and 7 said information about wetlands 

determinations and delineations made by NRCS would still be useful to §404 

enforcement efforts. In one instance, Region 1 developed an enforcement action 

1

 National Bulletin 130.9.2 – Processing Freedom of Information Act Requests Under Section 1619 of the Farm Bill 

(December 30, 2008). This National Bulletin expires September 30, 2009. 

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against a farm owner only to later learn that NRCS had classified the farmland as 

exempt from §404 requirements. 

Improved Coordination with State Agencies Would Be Beneficial 

EPA’s formal agreements with States are limited to New Jersey and Michigan. 

New Jersey’s and Michigan’s MOAs with Regions 2 and 5, respectively, enable 

them to carry out the policies, regulations, and procedures necessary to administer 

the permit program established under §404. The MOAs outline how the Regions 

will coordinate wetlands-related enforcement activities with those States. 

Better coordination between EPA and States that do not implement the §404 

program would help send a more consistent message to §404 violators. Staff in 

Minnesota’s Department of Natural Resources said they would like to see EPA or 

the Corps take the lead in prosecuting more of the wetland fills that are exempt 

under State law but not under §404, and better coordination could facilitate such 

action. While no EPA regional staff reported using State wetland violation 

reports to identify possible §404 cases, some State violation reports include 

information on wetland fills that are exempt under State law. If EPA reviewed 

these reports regularly, it might be better positioned to take the lead in prosecuting 

wetland fills that are exempt under State law but not under §404. 

Jurisdictional Uncertainty Has Further Impaired EPA’s Ability to 

Address §404 Violations 

Even when EPA and its partners are aware of §404 violations, they may be unsure 

whether they have the legal authority to bring enforcement actions. Prior to 2001, 

the scope of the CWA was fairly straightforward and could be interpreted to be 

more expansive. In 2001, the U.S. Supreme Court’s SWANCC2 decision 

effectively removed from CWA jurisdiction isolated waters that had previously 

been found to be jurisdictional based solely on the presence of migratory birds. 

The limits of CWA jurisdiction became more uncertain in 2006 after the Court’s 

split decision in the Rapanos3 case. In a March 2008 memo, EPA reported that it 

dropped 77 potential CWA §404 enforcement actions between July 2006 and 

December 2007 because it was uncertain it could establish jurisdiction under the 

CWA. In some cases, the jurisdictional uncertainty that resulted from the 

Rapanos and SWANCC cases makes it unclear whether a §404 violation has even 

occurred. In response to our draft report, EPA maintained that the effect of the 

Rapanos and SWANCC decisions on its §404 enforcement program cannot be 

overstated. 

2 Solid Waste Agency of Northern Cook County v. United States Corps of Engineers, 531 U.S. 159 (2001). 3 Rapanos et ux., et al. v. United States, 547 U.S. 715 (2006). 

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Conclusion 

EPA has not established a comprehensive, unified framework for its portion of the 

§404 enforcement program. EPA must develop a strategy for a comprehensive 

framework that includes guidance and controls that will allow it to effectively 

identify and resolve violations. Improved coordination with the Corps, other 

federal agencies, and the States should allow EPA to enforce §404 more 

efficiently. Without an effective framework or strategy, EPA cannot be assured 

that it is sufficiently protecting wetlands and other surface waters from §404 

violations involving dredged or fill activity. Further, the current system does not 

provide EPA with the necessary inputs to make informed decisions about the 

allocation of resources for §404 enforcement. 

Recommendations 

We recommend that the Assistant Administrator for Enforcement and Compliance 

Assurance, in consultation with the Assistant Administrator for Water: 

2-1 Develop and implement a comprehensive CWA §404 enforcement strategy 

that should address, but not be limited to, the following areas: 

a. Creation of a national tracking system for complaints and referrals from 

the Corps, as well as repeat and flagrant §404 violators; 

b. Improved communication and coordination between EPA 

Headquarters/regions and Corps Headquarters/districts; 

c. Barriers to enhanced interagency communication (and mechanisms to 

overcome these barriers) with the Corps, as well as other federal agencies 

(e.g., NRCS, FWS, and Civil Air Patrol); 

d. The feasibility of leveraging other CWA program resources to more 

systematically identify §404 violations; 

e. The adequacy of EPA’s current performance measurement system for the 

§404 enforcement program; and 

f. Cross-training opportunities with federal, State, and other stakeholders. 

We recommend that the Deputy Administrator: 

2-2 Revise, in collaboration with the Assistant Secretary of the Army for Civil 

Works, the 1989 MOA to clarify the types of cases that should be referred to 

EPA or the Corps; the revised MOA should update the procedures for case 

referrals. 

Agency Response and OIG Evaluation 

The Assistant Administrator, Office of Enforcement and Compliance Assurance, 

responded to our draft report on October 9, 2009 (see Appendix B). Overall, EPA 

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agreed that it could improve the effectiveness of its §404 enforcement program by 

taking a more proactive approach to detecting and enforcing violations. 

EPA agreed with our first recommendation to develop and implement a 

comprehensive §404 enforcement strategy. In its response, EPA indicated that it 

plans to comprehensively evaluate the wetlands program and each of the 

subrecommendations (a) through (f) to determine which elements are essential to 

an effective enforcement strategy. For example, EPA stated that the role of field 

inspections conducted by other CWA programs to discover §404 violations 

should be expanded as part of the enforcement strategy. EPA indicated it may 

initially pilot the developed enforcement strategy in a specific watershed, such as 

the Chesapeake Bay, to determine which elements should be included in the 

national strategy. 

In response to our second recommendation, EPA believed that any decision about 

revisions to the existing 1989 MOA with the Corps should be informed by the 

implementation of the enforcement strategy. It provided alternative language for 

this recommendation. 

In its response, EPA explained that it often learns of §404 violations from external 

sources, such as tips, complaints, or the Corps, because the CWA does not require 

the public to self-report their wetlands activities to the Agency. However, EPA 

agreed that while these sources can be an important part of an enforcement 

strategy, they should not be the sole foundation of an effective enforcement 

program. EPA also stressed that the Rapanos and SWANCC decisions greatly 

impacted the amount of resources needed to determine jurisdiction. As a result, 

EPA may choose to devote already limited resources to cases where jurisdiction is 

less uncertain and, therefore, easier to establish. 

While we commend EPA for its willingness to develop a national-level 

enforcement strategy for the §404 program, it is imperative that the Agency also 

implement the strategy. The Agency’s response does not address implementation 

issues, nor does it provide reasonable assurance that the strategy will address 

subrecommendations (a) through (f). In addition, given the wide variability in 

wetlands characteristics, we are also concerned that focusing the pilot study in a 

single watershed will not provide EPA with a comprehensive evaluation of the 

strategy. We believe that EPA should expand the scope of its pilot study to 

additional geographical areas. We encourage EPA to conduct these pilots within 

defined and reasonable timeframes. 

We acknowledge that the strategy development process will provide the Agency 

with additional insight regarding what changes are needed to the current case 

referral process. Given our findings, we still believe the 1989 MOA will need to 

be revised once EPA completes the §404 enforcement strategy. Therefore, we 

consider both recommendations undecided. 

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The Agency’s response also included some suggested editorial revisions to clarify 

certain factual issues. We have reviewed those suggestions and made changes to 

the report, as appropriate. 

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Status of Recommendations and 

Potential Monetary Benefits 

POTENTIAL MONETARY 

RECOMMENDATIONS BENEFITS (in $000s) 

Rec. 

No. 

2-1 

2-2 

Page 

No.

11 

11 

 Subject 

Develop and implement a comprehensive CWA 

§404 enforcement strategy that should address, 

but not be limited to, the following areas: 

a. Creation of a national tracking system for 

complaints and referrals from the Corps, as 

well as repeat and flagrant §404 violators; 

b. Improved communication and coordination 

between EPA Headquarters/regions and 

Corps Headquarters/districts; 

c. Barriers to enhanced interagency 

communication (and mechanisms to 

overcome these barriers) with the Corps, 

as well as other federal agencies 

(e.g., NRCS, FWS, and Civil Air Patrol); 

d. The feasibility of leveraging other CWA 

program resources to more systematically 

identify §404 violations; 

e. The adequacy of EPA’s current 

performance measurement system for the 

§404 enforcement program; and 

f. Cross-training opportunities with federal, 

State, and other stakeholders. 

Revise, in collaboration with the Assistant 

Secretary of the Army for Civil Works, the 1989 

MOA to clarify the types of cases that should be 

referred to EPA or the Corps; the revised MOA 

should update the procedures for case referrals. 

Status1 

U 

U 

Action Official 

Assistant Administrator 

for Enforcement and 

Compliance Assurance, 

in consultation with 

Assistant Administrator 

for Water 

Deputy Administrator 

Planned 

Completion 

Date 

Claimed 

Amount 

Agreed To 

Amount 

1 O = recommendation is open with agreed-to corrective actions pending 

C = recommendation is closed with all agreed-to actions completed 

U = recommendation is undecided with resolution efforts in progress 

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Appendix A 

Details on Scope and Methodology 

Wetlands Enforcement Information Request 

We sent a brief information request to all EPA regions about how they identify violations of 

§404 of the CWA that fall under their enforcement authority as described in the 1989 MOA 

between EPA and the Corps, including: 

•	 How regions define flagrant and recurring violations of §404. 

•	 What types of policies and guidance regions use to define/identify violations of §404. 

•	 What other types of wetlands-related enforcement policies and guidance regions use, 

e.g., standard operating procedures and FLAs with Corps districts. 

•	 How regions resolve lower priority violations of §404. 

We received and analyzed responses to the information request from all 10 regions. 

Interviews with Federal, State, and Other Organizations 

We interviewed a variety of personnel from federal, State, and other organizations, including 

EPA and the Corps, as follows: 

EPA State 

• OECA • Massachusetts Department of Environmental Protection 

• OWOW	 • Florida Department of Environmental Protection 

• Office of General Counsel • Georgia Department of Natural Resources 

• Region 1 • Michigan Department of Environmental Quality 

• Region 3 • Minnesota Pollution Control Agency 

• Region 4 • Minnesota Department of Natural Resources 

• Region 5 • Minnesota Board of Water and Soil Resources 

• Region 7 • Nebraska Department of Environmental Quality 

• Region 8 

Corps Other Agencies and Organizations 

• Headquarters, Regulatory Branch • FWS - Division of Habitat and Resource Conservation 

• New England District • NRCS 

• Pittsburgh District	 • St. Johns River Water Management District 

• Savannah District • Northwest Florida Water Management District 

• Jacksonville District • Association of State Wetland Managers 

• St. Paul District • Massachusetts Association of Conservation Commissioners 

• Detroit District 

• Rock Island District 

• Omaha District 

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Our purpose during the interviews was to gain a better understanding of how these agencies and 

organizations identify unauthorized violations of §404 (proactively or reactively), process known 

violations, and collaborate with other agencies. Generally, the topics covered during an 

interview included: 

•	 Sources of information about §404 violations, e.g., citizen complaints and Corps personnel. 

•	 Effect of recent changes to jurisdictional determinations and subsequent case development. 

•	 Use of internal and external databases to track violations and case development. 

•	 Use of field-level agreements and other documents to improve collaboration. 

•	 Effectiveness of remote sensing and other surveillance techniques for identifying §404 

violations. 

Review of EPA’s Enforcement Database and Selection of Final Enforcement Actions 

We reviewed EPA’s Enforcement and Compliance History Online database for specific 

information regarding enforcement actions taken by EPA Regions 1, 3, 4, 5, 7, and 8 under 

CWA §404 between October 1, 2003, and September 30, 2008. During this time, these regions 

took 340 final enforcement actions under CWA §404. We judgmentally selected 59 actions 

(see Table A-1) to discuss during regional interviews, including those: 

•	 That were identified as flagrant, egregious, or repeat violations in the case narrative; 

•	 That represented the majority of States located within the region; 

•	 Where violations occurred across more than one EPA region; 

•	 With a variety of wetlands types, impact sizes, and types of violators (e.g., individuals, 

municipalities, corporations, and developers); 

•	 With high penalty amounts (a proxy for the size of the violation); and 

•	 With high compliance action costs (also a proxy for the size of the violation). 

Table A-1: Section 404-related Final Enforcement Actions Selected for Further Review 

Region 1 Region 3 Region 4 Region 5 Region 7 Region 8 

01-2000-0017 03-2004-0309 04-2008-5504 05-2001-0704 07-2007-0144 08-2006-0052 

01-2004-2047 03-2005-0270 04-2005-5754 05-2008-8201 07-2007-0125 08-2007-0174 

01-2005-2007 03-2006-0085 04-2007-5754 05-2008-8202 07-2005-0163 08-2003-0822 

01-2006-2027 03-2006-0173 04-2003-9032 05-2008-8203 07-2004-0332 08-2005-0196 

01-2008-2030 03-2007-0203 04-2008-5767 05-2007-0612 07-2007-0159 08-2005-0213 

01-2008-2031 03-2000-0281 04-2008-5501 05-1997-0371 07-2007-0206 08-2007-0016 

01-2008-2032 03-2005-0357 04-2008-5502 05-2006-2347 07-2007-0122 08-2004-0212 

01-2008-2515 04-2008-5503 05-2005-0502 07-2008-0072 08-2005-0164 

 04-2004-5751 05-2003-0723 07-2008-0073 08-2004-0209 

 04-2004-5752 08-2005-0167 

 04-2004-5753 08-2008-0060 

 04-2004-5754 08-2007-0173 

 04-2002-9008 

 04-2006-5755 

Source: OIG analysis 

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During interviews with regional wetlands enforcement personnel, the team sought to learn for 

each case: 

• When EPA or the Corps discovered the violation or received a complaint/referral, 

• When EPA became the lead enforcement agency, 

• Details about the violation, and 

• Information sources used to develop the case. 

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Appendix B 

Agency Response 

October 9, 2009 

MEMORANDUM 

SUBJECT: Evaluation Report: “EPA Needs a Better Strategy to Identify Violations of 

Section 404 of the Clean Water Act,” Project No.OPE-FY08-0006 

FROM: Cynthia Giles 

 Assistant Administrator 

TO: Wade Najjum 

Assistant Inspector General for Program Evaluation 

Office of Inspector General 

On behalf of the Deputy Administrator and the Office of Water (OW), I am writing to 

transmit EPA's comments on the subject Report. We appreciate the opportunity to respond to the 

Office of Inspector General's (OIG) findings and recommendations as reported in “EPA Needs a 

Better Strategy to Identify Violations of Section 404 of the Clean Water Act.” We would like to 

thank you and your staff for your willingness to meet to resolve comments and to discuss your 

findings, and for incorporating many of our specific comments and corrections on the discussion 

draft. We believe that this collaborative approach is important to achieving a more accurate and 

effective Report. The Agency agrees that it could improve the effectiveness of its Section 404 

enforcement program by taking a more proactive approach to detecting and enforcing violations, 

and that the OIG’s suggestions are helpful in identifying areas where the enforcement program 

could be strengthened. 

As your report notes briefly, the recent SWANCC and Rapanos decisions have had a 

significant impact on enforcement targeting and case development. Because of the increased 

evidentiary burdens imposed by these cases, EPA is now required to devote significant resources 

to jurisdictional determinations before it decides whether to pursue an enforcement case. This 

has had the effect of diverting scarce resources away from activities designed to detect Section 

404 violations. This issue will continue to impact any enforcement strategy developed by the 

agency. We encourage the OIG to consider emphasizing these challenges more fully in the final 

Report. 

EPA agrees with the first recommendation in the Report to develop and implement a 

comprehensive section 404 enforcement strategy. EPA may initially focus or pilot an 

enforcement strategy in a particular watershed, such as the Chesapeake Bay. The results of the 

pilot could then be used to inform the development of a national strategy. An enforcement 

strategy should include, among other things, a more proactive approach to enforcement, 

including more effective coordination with the Army Corps of Engineers (the Corps). With 

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respect to the second recommendation, EPA believes that we should develop and gain experience 

with a section 404 enforcement strategy before embarking on a revision of the 1989 

Memorandum of Agreement (MOA) with the Corps. We recognize that the Corps is a 

significant source of information to EPA on potential violators and would be collaborating 

closely with it in implementing a new strategy. Once EPA implements the new enforcement 

strategy or completes any pilot, it would have a much clearer understanding of whether, and to 

what extent, the MOA should be revised. 

We appreciate the opportunity to review and comment on this draft Report. Please see 

our attached detailed comments to each of the issues and recommendations. Should you have 

any questions or concerns regarding this response, please contact EPA’s Audit Liaison, 

Gwendolyn Spriggs, at 202-564-2439. 

Attachment 

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EPA Response to OIG Draft Report 

EPA Needs a Better Strategy to Identify Violations of Section 404 of the Clean Water Act 

Project No. OPE-FY08-0006 

I. EPA’s Response to Report Recommendations 

Report Recommendation 2-1: 

Develop and implement a comprehensive CWA Section 404 enforcement strategy 

that should address, but not be limited to, the following areas: 

a. Creation of a national tracking system for complaints and referrals from the 

Corps, as well as repeat and flagrant Section 404 violators; 

b. Improved communication and coordination between EPA Headquarters/regions 

and Corps Headquarters/districts; 

c. Barriers to enhanced interagency communication (and mechanisms to overcome 

these barriers) with the Corps, as well as other federal agencies (e.g. NRCS, 

FWS, and Civil Air Patrol); 

d. The feasibility of leveraging other CWA program resources to more 

systematically identify Section 404 violations; 

e. The adequacy of EPA's current performance measurement system for the 

Section 404 enforcement program; 

f. Cross-training opportunities with federal, state, and other stakeholders. 

Comment: 

EPA agrees with Recommendation 2-1 and plans to develop, in consultation with OW 

and the Regional offices, and in collaboration with the Corps as appropriate, an 

appropriate enforcement strategy. In developing the strategy, EPA will comprehensively 

evaluate the program, including each of the sub-recommendations (a)-(f) to determine 

whether each of these elements is essential to an effective enforcement strategy. 

With respect to Recommendation 2-1, EPA would like to retain the discretion to 

thoroughly evaluate the sub-recommendations (a)-(f) before deciding whether to include 

all, or only some of, them in the Section 404 enforcement strategy. This opportunity for 

evaluation will enable EPA to determine which elements are essential to an efficient and 

effective Section 404 enforcement strategy. EPA might initially pilot or focus such an 

enforcement strategy in the Chesapeake Bay watershed to determine which elements are 

most effective. This experience will help EPA to further refine the Section 404 

enforcement strategy. 

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Report Recommendation 2-2: 

Revise, in collaboration with the Assistant Secretary of the Army for Civil Works, 

the 1989 MOA to clarify the types of cases that should be referred to EPA or the 

Corps; the revised MOA should update the procedures for case referrals. 

Comment: 

While EPA agrees that improved coordination with the Corps is essential to a more 

proactive Section 404 enforcement program, EPA believes that implementing an 

enforcement strategy should inform any decision on revisions to the existing MOA with 

the Corps. EPA proposes the following language as a substitute: 

“After development of a comprehensive enforcement strategy consistent with 

Recommendation 2-1, EPA will evaluate whether the enforcement strategy has 

effectively addressed the issues raised in the Report, and, if not, consider whether it is 

necessary to revise the 1989 MOA to clarify the types of cases that should be referred and 

the processes for making case referrals.” 

II. EPA's Specific Comments and Corrections on Text of the Report 

FINDINGS SECTION 

Finding: EPA Lacks a Unified Framework to Manage the Section 404 Enforcement 

Program 

EPA agrees that a successful Section 404 enforcement program must focus on actively 

pursuing Section 404 violations through enforcement targeting and other proactive 

approaches. Approaches such as using field inspections primarily intended to investigate 

other types of CWA violations (e.g., Section 402 and Section 311) to also discover 

violations of Section 404 should be expanded as part of a Section 404 enforcement 

strategy. In addition, the Agency has implemented various initiatives, such as the 

Tulloch ditching initiative, that have been successful in discovering large numbers of 

violations involving certain types of activities or located in certain geographic regions. 

An enforcement initiative, perhaps piloted in a particular watershed such as the 

Chesapeake Bay, could serve as a template for the development of similar enforcement 

targeting approaches as part of a new enforcement strategy. 

Finding: EPA Relies on External Sources for Violation Knowledge 

In earlier discussions with the DIG, the Agency commented that, because Section 404 of 

the CWA does not provide a statutory requirement for the regulated public to self-report 

information to the Agency about wetlands activities, EPA has historically relied on 

external sources such as tips and complaints, and referrals from the Corps, to learn about 

Section 404 violations. While EPA agrees that tips and complaints should not be the sole 

foundation of an effective enforcement program, these sources of information can be an 

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important part of a successful enforcement strategy. When combined with other, more 

proactive, approaches to discovering violations tips and complaints represent a successful 

coordination between EPA and its governmental partners and private citizens, and allow 

for public participation in wetlands enforcement efforts. Tips and complaints can also be 

a very important source of information about significant Section 404 violations, as well 

as of smaller, more discrete, violations that may otherwise go undetected. Finally, 

although the Corps might be viewed as an “external source” of information, EPA believes 

that it more accurate to characterize its relationship with the Corps as that of “coregulator.” EPA believes that it is critical that the two agencies freely exchange 

information so as to improve Section 404 enforcement throughout the federal 

government. 

Finding: Jurisdictional Uncertainty Has Further Impaired EPA's Ability to 

Address Section 404 Violations 

We respectfully submit that the effect that the SWANCC and Rapanos decisions have 

had on the Agency’s Section 404 enforcement program cannot be overstated. The 

SWANCC and Rapanos decisions, and the inconsistent positions taken by the lower 

courts in response, have created such uncertainty about the scope of CWA jurisdiction 

that EPA must carefully evaluate whether it would be an appropriate use of Agency 

resources to pursue particular Section 404 violations in pans of the arid west, where the 

violations are located a great distance from a traditional navigable water, or where the 

costs of proving jurisdiction are disproportionately large. In these circumstances, what 

would have normally been considered a clear Section 404 violation prior to SWANCC 

and Rapanos, is no longer certain, and would require the expenditure of additional 

enforcement resources to support jurisdiction in court. 

It is important to recognize that this resource burden begins at the outset of any 

investigation of alleged wetlands violations. The Agency may expend substantial 

resources only to determine jurisdiction is problematic, and the case will no longer be 

pursued. Because of the resources necessary to prove jurisdiction, the Agency may 

choose to devote its limited resources to cases where jurisdiction is less uncertain. The 

result is that a large percentage of waters that would have been protected under Section 

404 prior to SWANCC and Rapanos, such as headwater or ephemeral streams, streams in 

arid parts of the country and isolated waters may receive less attention from the Agency 

because of the costs of proving jurisdiction in these cases. We request that this section 

even more strongly emphasize the impact of these decisions on the enforcement program. 

We also request that this section be emphasized in an earlier section of this Report to 

more accurately capture the significance that these issues have had on the Section 404 

enforcement program. 

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Technical Corrections 

Beyond the substantive issues discussed in the comments, above, EPA would also like to suggest 

additional editorial revisions to clarify certain factual issues in the Report. 

1. The Report states that OWOW is developing an interface with the Corps’ national database 

that will “only provide EPA staff with Corps’ permit data.” In fact, the computer interface 

being developed by the OWOW to exchange data with the Corps’ national regulatory 

database will provide access to Corps’ permit data as well as data on Clean Water Act 

jurisdiction. The second-to last sentence at the bottom of page 7 should be modified to 

reflect this. 

2. The Report states on page 8 that there is little consistency among the regions and Corps 

districts regarding the processes and procedures for referral of cases to EPA. The Report 

notes that, in some cases, this may result in uncertainty or confusion about who should be the 

lead enforcement agency. While this uncertainty may cause delay in certain enforcement 

cases, the Agency believes that the characterization that this uncertainty “could force [Corps] 

District[s] to initiate a review of a violator's application for an after-the· fact permit” is 

overstated. The Corps is not “forced” to issue or even consider an after-the-fact permit in 

response to a potential Section 404 violation. Instead, in choosing to issue after-the-fact 

permits the Corps is making a policy decision. EPA’s view is that after-the-fact permits 

should not be issued in lieu of enforcement actions where an enforcement action is warranted 

and appropriate. Would ask that the last sentence of the third paragraph in this section be 

replaced with the following: 

“Uncertainty about which agency has the lead enforcement status during this period can 

result in some delay. During this period, the Districts may choose to initiate the review of a 

violator’s application for an after-the-fact permit, although EPA does not believe that afterthe-fact permits should be issued in lieu of enforcement action.” 

3. On page 10, the Report refers to an enforcement case in Region 5 against a large coal mine in 

Indiana as evidence of a lack of coordination between EPA and the state. However, 

according to Region 5, EPA did, in fact, participate in interagency meetings with the Indiana 

Department of Environmental Management, Indiana Department of Natural Resources and 

the Corps as early as April 2007 to share information and coordinate EPA’s enforcement 

response in this particular case. We therefore request that this particular example be deleted. 

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Appendix C 

Distribution 

Office of the Administrator 

Acting Deputy Administrator 

Assistant Administrator, Office of Enforcement and Compliance Assurance 

Assistant Administrator, Office of Water 

Principal Deputy Assistant Administrator, Office of Enforcement and Compliance Assurance 

Deputy Assistant Administrator, Office of Water 

Director, Office of Civil Enforcement, Office of Enforcement and Compliance Assurance 

Deputy Director, Office of Civil Enforcement, Office of Enforcement and Compliance Assurance 

Acting Director, Office of Wetlands, Oceans and Watersheds, Office of Water 

Acting Deputy Director, Office of Wetlands, Oceans and Watersheds, Office of Water 

Agency Follow-up Official (the CFO) 

Agency Follow-up Coordinator 

General Counsel 

Associate Administrator for Congressional and Intergovernmental Affairs 

Associate Administrator for Public Affairs 

Audit Follow-up Coordinator, Office of Enforcement and Compliance Assurance 

Audit Follow-up Coordinator, Office of Water 

Acting Inspector General 

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